Miss S Hussain v East Lancashire Hospitals NHS Trust: 2412142/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 2412142/2023

Between

Miss S HussainClaimant

East Lancashire Hospitals NHS TrustRespondent

Before

Employment Judge Phil Allen

Mr L Bronze (instructed by counsel) for claimant

Mr R Dunn (instructed by counsel) for respondent

Date 31 October 2025

JUDGMENT

[1]The following complaints of discrimination arising from disability are wellfounded and succeed:1.1 The claimant suffered unfavourable treatment when her trial in the patient services team which started on 24 April 2023 was ended (issue 14(a)(i)); and

1.2 The claimant suffered unfavourable treatment when the respondent arranged a face-to-face meeting at very short notice on 26 September 2024 to discuss her trial (issue 14(b)).

[2]The following complaints of victimisation are well founded and succeed:2.1 The respondent failed to provide a summary of the resolution meeting setting out agreed action points and next steps following the meeting on 1 December 2023 (issue 20(d));

2.2 The respondent failed to respond to the emails from the claimant’s trade union officer on 10 December 2023, 12 January 2024 and 30 January 2024 (issue 20(e));

2.3 On 16 February 2024 the respondent stated that the resolution meeting process would not continue until the claimant’s Tribunal claim had concluded (issue 20(f));

2.4 The respondent delayed providing notes of the resolution meeting on 1 December 2023 and stated that these would only be provided during the disclosure process as part of the Tribunal claim (issue 20(g)); and

2.5 The respondent failed to allow the claimant to continue to undertake bank shifts while she was awaiting the commencement of her trial on CCU as communicated to the claimant by email on 11 September 2024 (issue 20(j)).

[3]The following complaints of harassment related to disability are well-founded and succeed:3.1 The respondent preparing the OH referral describing the claimant as disruptive on 23 January 2024 (issue 29(a)); and

3.2 The respondent notifying the claimant that she could not carry out bank shifts (part of issue 29(d)).

[4]The other complaints of discrimination arising from disability are not wellfounded and are dismissed.

[5]The other complaints of victimisation are not well-founded and are dismissed.

[6]The other complaints of harassment related to disability are not well-founded and are dismissed

[7]The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.

[8]The complaints of direct disability discrimination are not well-founded and are dismissed.

[9]The allegations found at 1.1 (issue 14(a)(i)) and3.1 (issue 29(a)) were not entered at the Employment Tribunal within the primary time period required for such complaints. The allegation found at 3.1 was part of conduct extending over a period with the allegation found at

3.2 and so the claim was entered within the time required taking the end of that period. The allegation found at 1.1 was entered at the Tribunal within such further period as was just and equitable and accordingly the Tribunal did have jurisdiction to consider that complaint.

REASONS

[1]The claimant is employed by the respondent as a Health Care Assistant (band two). She has been employed since 24 November 2014. She entered three claims at the Tribunal, all of which were joined and heard together. She has dyslexia and dyspraxia, and it is accepted by the respondent that they were disabilities at the relevant time. She claimed breach of the duty to make reasonable adjustments, discrimination arising from disability, direct disability discrimination, harassment related to disability, and victimisation. Claims and Issues

[2]There were three preliminary hearings in this case. An agreed list of issues was included in the bundle of documents (209). Subject to some issues raised, the parties confirmed at the start of the hearing that the list of issues remained those which needed to be determined. On the morning of the third day, we were provided with an updated agreed list of issues. That list is appended to this Judgment.

[3]The respondent conceded that the something arising relied upon by the claimant as part of the discrimination arising from disability claim, was something arising from her disability.

[4]The respondent conceded that the protected acts relied upon for the victimisation complaint, were protected acts.

[5]At the start of the hearing, the parties raised a concern that the issues to be determined in the direct discrimination claim and the harassment claim had not been clearly and distinctly identified in the list of issues. It was confirmed that the parties could address those issues in submissions.

Procedure

[6]Both parties were represented by experienced counsel at the hearing. We appreciated the appropriate way in which the case was conducted throughout and, in particular, the way in which the representatives ensured that the evidence and submissions were heard in the time available.

[7]The hearing was conducted in-person, with both parties and all witnesses attending Manchester Employment Tribunal.

[8]We were provided with a substantial bundle of documents which ultimately ran to page 2847. We read only the documents in the bundle to which we were referred. Where a number is referred to in brackets in this Judgment, that is a reference to the page number in the bundle.

[9]One page was added to the bundle on the first day of hearing after it had been disclosed late by the claimant. On the second day there was a dispute about the addition of a document which had been found and identified by the claimant’s counsel (being the decision of the Solicitors Disciplinary Tribunal from 2018 involving Mrs Emmett and others) (2755A). The claimant sought to have it admitted and the respondent objected to it being added to the bundle. We heard brief oral submissions from each of the parties on the morning of the second day, before adjourning and reaching a decision that the document would be admitted and added to the bundle. We gave our reasons for doing so. Those reasons are confirmed below at paragraphs 19-24.

[10]We were provided with witness statements from each of the witnesses called to give evidence. On the first day, we read those witness statements, together with the documents referred to.

[11]The parties, very sensibly and pragmatically, agreed an approach to the evidence and agreed the order in which witnesses were heard.

[12]On the second day (being a Friday), we heard evidence from two witnesses called by the respondent: Mrs Zoe Lewis, Assistant Matron in the Emergency Department (in this Judgment we will use ED for the Emergency Department); and Miss Gail Louise Harrison, PSA supervisor. Each of them was cross-examined, asked questions by us, and re-examined.

[13]On the third and fourth days we heard evidence from the claimant, she was cross examined by the respondent’s representative, we asked her questions, and she was re-examined.

[14]We then heard evidence on the fifth and sixth days from each of the following witnesses for the respondent. Each was cross-examined, asked questions by us and re-examined (where required). Those witnesses were: Mrs Lindsay Helen Emmett, Senior HR Business Partner; Mr Joshua Lewis Peter, at the time HR Operations Manager for Medicine and Community and now Senior HR Business Partner; Mrs Katie Louise Topham, Discharge Matron; Mrs Doris Wilfred Robinson, Ward Manager CCU; and Mrs Sharon Louise Gilligan, Chief Operations Officer and Deputy Chief Executive.

[15]The case had originally been listed to be heard over eight days, but what had been due to be the first day was vacated due to an issue unrelated to the case and the parties. On the morning of the third day (which was a Monday) the claimant’s representative was unwell and the hearing did not proceed during the morning at his request so that he could attend a medical appointment, with the extended afternoon starting early at 1 pm.

[16]After the evidence was heard, each of the parties was given the opportunity to make submissions. Detailed written submissions were helpfully provided by both parties on the morning of the seventh day and were read before the start of the hearing that morning. Each of the representatives made additional oral submissions on the morning of the seventh day.

[17]Due to the time lost during the hearing, it was not possible for us to reach our decision and to tell the parties the decision and the reasons for it, in the time available. We arranged two additional days in chambers to consider our decision and informed the parties of the dates we had identified at the end of the part of the hearing which they attended. We reserved our decision. Our Judgment and reasons are provided in this document.

[18]At the start of the hearing, it was agreed that we would hear liability issues only, and remedy would be left to be determined at a later date (if required). Accordingly, this decision contains our determination on liability issues only, with remedy issues yet to be heard and determined. Our reasons for admitting the disputed document

[19]We were required to make our decision on whether or not the document should be admitted and considered by us, in accordance with the overriding objective. That is to deal with cases fairly and justly. A part of the overriding objective is to avoid unnecessary formality and to seek flexibility in proceedings. We also needed to avoid delay and save expense.

[20]The document provided should have been provided earlier. It was unsatisfactory that it had only sought to be relied upon on the second day of the hearing. It should have been raised at one of the three preliminary hearings or, at least, prior to the second day of the final hearing.

[21]We understood the explanation given by the claimant’s representative as to why it had only been identified by him for inclusion so late, albeit we noted that the claimant may have been aware of the existence of the document (or of the matters referred to in the document) much earlier.

[22]An issue which was raised in submissions, was the impact that the document might have upon Mrs Emmett’s credibility. It was impossible for us to know at the start of the hearing whether Mrs Emmett’s credibility might ultimately turn out to be an issue which might be relevant to our decision. We accepted that the respondent’s representative’s submission might be right, and it might ultimately not be something which we needed to consider. However, at the start of the hearing, we could not know whether that was correct. The claimant’s representative was right in his submission that Mrs Emmett appeared to be a highly relevant witness who was central to the proceedings. She had provided the longest witness statement of the witnesses called by the respondent and her evidence was central to many of the factual issues. It was clear to us that her evidence and her credibility might turn out to be relevant to our decision.

[23]We noted that it appeared to be the case that the respondent wished to ensure that the document/decision was considered in the context of evidence to be given by Mrs Emmett. We took the view that it was preferrable to hear Mrs Emmett’s evidence about the document and to consider it, where we had been made aware of the decision/document and where it might be relevant to the decision which we needed to make if Mrs Emmett’s credibility was relevant. If Mrs Emmett’s credibility turned out not to be relevant, the document would also not be relevant to the decision which we needed to reach.

[24]On that basis, we decided that we would admit the document and would consider evidence about it. We agreed that we would allow the respondent to submit supplementary evidence which arose as a result of its admission, either in a supplemental witness statement or by asking supplemental questions as part of the evidence in chief of Mrs Emmett. Reasonable adjustments

[25]The case management order made following the third preliminary hearing detailed the reasonable adjustments which had been discussed and needed to be made. Those adjustments were made. In summary, the reasonable adjustments made were as follows:a. The respondent provided a brief written summary of the headline topics which would be covered during cross-examination of the claimant, and he adhered to those topics when he did so (explaining when he changed topic);

b. The claimant was given the opportunity throughout her crossexamination to say that she did not understand the question and she did so frequently. The questions were repeated or rephrased by the respondent’s counsel or, where appropriate, the Employment Judge;

c. Mr Akram sat next to the claimant while she gave evidence and assisted her by turning to the relevant page in the bundle and assisted by indicating the relevant paragraph in the document or part of the witness statement to which reference had been made;

d. A break was taken every hour during the claimant’s cross-examination (and during the first couple of days of hearing);

e. The claimant was allocated a private conference room for use prior to and after each day of the hearing and during breaks in the hearing;

f. The claimant was given the time she needed to think about her answers before replying, during cross-examination;

g. The claimant had blank paper to write on whilst being cross-examined;

h. The claimant was able to take up to the witness table a copy of her witness statement on yellow paper and she used a yellow acetate when reading other pages/documents whilst being cross-examined;

i. The respondent’s counsel to an extent, used shorter, clearer, questions when cross-examining the claimant; and

j. The Employment Judge, on occasion, informed the claimant that she could stop talking once she had answered the question, albeit in practice he only needed to do so infrequently.

Facts

[26]The claimant worked for the respondent from 24 November 2014 as a Band 2 Health Care Assistant. We were provided with her offer letter of 24 October 2014 which confirmed her appointment as a Health Care Assistant and her statement of employment particulars (2008) which recorded that her job title was Health Care Assistant.

[27]The claimant has dyslexia and dyspraxia.

[28]We were provided with the respondent’s Early Resolution Policy (2238), being in practice the respondent’s policy for addressing grievances. That policy said that it drew upon six core principles: fairness; compassion; mutual respect; empathy; dignity; and dialogue. At 2.3 (2242) the policy said that all complaints must be raised within three months of the incident/concern (unless there were exceptional circumstances). There was an early resolution section (2244) which outlined some options for the respondent to support early resolution. As was emphasised by the respondent, the early resolution section contained no statement of the period of time for which it would last (indeed, we would observe that the early resolution section of the procedure contained almost nothing which would explain to a reader what informal resolution would entail and how it would be progressed). The procedure generally, contained a number of references to addressing things “quickly” and “at the earliest opportunity”.

[29]Under the formal resolution part of the procedure (2245) it was said that if early resolution had not resolved the issue satisfactorily, a request could be made for formal resolution, and it would be dealt with by a manager more senior than the one previously involved. It said that the senior manager would contact the person raising the issue to arrange a formal resolution meeting as soon as practicable (said to be normally within ten days) and would confirm the outcome in writing as soon as possible, normally within five working days. In a further section on appeals, it was said that the respondent would aim to hear the appeal within thirty days, subject to the availability of panel members and extension by mutual agreement.

[30]We were provided with the respondent’s attendance at work policy (2291). In a section on long term sickness management (2303) it said that “Managers should aim to meet with staff who have been absent for over 28 days on a monthly basis as a minimum”.

[31]We were provided with managers guidance – redeployment process (2058). The purpose of the document was stated to be to provide a framework for responsibilities to ensure that all redeployment issues were dealt with in a fair, consistent, and timely manner. In relation to trials, it said (2061) that trial managers must meet regularly with the employee to support them through the trial period. A section on trial periods (2064), appeared to be written on the basis that an employee would have already been offered suitable alternative employment at the time a trial period was commenced (rather than it being a precursor to the alternative employment being offered). That stated that the trial period would initially be four weeks (although it could be extended). It also stated that the employee should be given every opportunity to succeed in the trial period. In a section on reasonable adjustments (2066) the policy addressed when they would need to be made.

[32]We were provided with the respondent’s staff bank and agency worker policy (2184). Our attention was drawn to a part of the policy which detailed suspensions and exclusion of bank staff (2195). That said (amongst other things) that if the respondent had reasonable grounds to believe that a member of bank staff’s completion of a placement may compromise the safety of patients or others, the respondent could exclude the bank worker from the premises.

[33]In 2022 the claimant was working as a Health Care Assistant in the Discharge Lounge as part of the clinical flow team. Some disciplinary allegations were made against the claimant, which were investigated. She was suspended. A disciplinary hearing took place on 8 and 15 December 2022. Three allegations were considered at the hearing. The finding for each allegation was that the decision-maker could find no evidence. It was stated that there was no case to answer and so no disciplinary action would be taken. That was set out in a decision letter of 16 December 2022 (551).

[34]Even though none of the disciplinary allegations were found, the decision was made that the claimant should move to a different department within the Trust in a similar role. In the disciplinary decision letter, that was said to be because it had become clear that the relationship between the claimant and other (unnamed) members of staff in the discharge lounge had irretrievably broken down. As a result, the claimant did not return to working in the role she had previously fulfilled.

[35]The respondent asserted that the claimant had not wanted to return to her previous role. It was the claimant’s evidence that she had been told that she could not do so. Her trade union representative (Mr Akram) on occasion in correspondence with the respondent, disputed the suggestion that it was the claimant’s own decision not to return to the discharge lounge.

[36]Various occupational health reports were obtained regarding the claimant. The most important for these proceedings was a report prepared on 2 February 2023 in which the following was said (571): “Shahreen is part of a neurodiversity group within the trust. It is important where Shahreen works that they understand her own neurodiversity. Following discussions today, Shahreen would benefit from:• A role that is structured with a set routine as she struggles when things are changed at short notice so a busy working environment that is unpredictable would not suit her

• A buddy within work who understands her neurodiversity and can support her

• Her roles and responsibilities are set out and written down, so she knows what is expected of her

• Regular supervision that is written down due to her short-term memory deficit

• Colleagues approach her if they have any issues or questions to enable things to be resolved in the shortest possible time, also highlighting times when she may overtalk which is a trait of hers

• Only being given a maximum of 2 new tasks to learn at a time

• Split shifts, ie not all together and no long days

• No night duty

• A phased return Following todays consultation, in my opinion, Shahreen is fit for duty following the guidance given”

[37]An email from Mrs Emmett (Senior HR Business Partner) to the claimant of 27 February 2023 (1520) detailed a conversation they had had (along with the claimant’s sister) the previous week. There had been discussion of roles available. Regarding bank work, the email said “you asked if you could continue to pick up HCA bank shifts as soon as your fit note expires. I said that this would be fine”. The email ended with confirmation that they had talked about the claimant’s disappointment with the way she had been treated in the discharge lounge, the resolution process, and mediation was referred to as having been discussed, but it was said the claimant did not think that mediation would be useful as she had tried it before.

[38]The claimant undertook a trial as a PSA. In practice, that started on 24 April 2023. The PSA role involved both cleaning duties and duties transferring patients between parts of the hospital, albeit that at the outset the claimant was initially trained in the cleaning duties only. The claimant’s evidence was that she only transported one patient on one occasion during the trial and that was towards the end. It was not a Health Care Assistant role. It was a band two role.

[39]On 1 March 2023 an email was sent by Fiona Chetwood (an Assistant HR Operations Manager, from whom we did not hear) to Lorraine Bentley and Nicola Hibbert (senior managers in Estates and Facilities) (609). That email reproduced the bullet points from the 2 February occupational health report. It said that it was done so that they could “understand her challenges”. We did not hear evidence from either Ms Bentley or Ms Hibbert. They were the more senior managers responsible for the area in which the PSA trial was undertaken. We heard no evidence that anything whatsoever was done in response to the information with which they were provided. We did hear evidence from Miss Harrison, the supervisor who was tasked with supervising the claimant’s trial. She was not provided with the information in the email and was unaware of the occupational health advice.

[40]The PSA trial began on 24 April 2023. It was the claimant’s evidence that she was asked to work on one ward with Karen Brimlow (another PSA) for three days. Ms Brimlow told the claimant that she was not going to take her job away from her. Ms Brimlow informed Miss Harrison that she couldn’t cope with the demands of working with the claimant, as she found her constant chattering and talking disruptive and, according to Miss Harrison’s evidence, Ms Brimlow said she would walk out of her job if she had to continue working with the claimant.

[41]The claimant was asked to continue the trial on a different ward. The claimant worked with Rachael Park (another PSA). The claimant’s evidence was that she only actually worked with Ms Park for one day. Ms Park also complained to Miss Harrison, albeit Miss Harrison could not recall when she had done so. That complaint was also about the claimant asking questions and speaking.

[42]There was no documentation which recorded the complaints of Ms Brimlow or Ms Park. There were no notes of them raising the complaints (or, for Ms Brimlow, saying she would resign if she had to continue working with the claimant).

[43]It was the claimant’s evidence that she only spoke to Miss Harrison on a couple of occasions during the trial. It was her evidence that, once she had been allocated a particular ward, she would go to that ward for the start of her shift.

[44]At 11.23 on the morning of 27 April (that is a little over three days after the claimant had started the trial), Ms Hibbert sent an email to Ms Chetwood (629) and said “Please could we have an urgent scheduled in with regards to the trail The current area Shareen is on are asking for her to be removed due to her disruptions. The members of PSA staff have also asked not to work with her”. Ms Hibbert was one of the more senior managers who had been informed about the adjustments occupational health had advised should be made. It appeared from what was said that Ms Hibbert had decided that the trial should be ended after a little over three days. There was no evidence that Ms Hibbert either spoke to the claimant or observed the claimant working herself. We were provided with no written records which recorded matters being escalated to Ms Hibbert. In her evidence, Miss Harrison did not say that she had escalated matters to Ms Hibbert after three days of the trial.

[45]On 28 April, Ms Chetwood emailed Mr Joshua and Mrs Emmett saying that she had spoken to Ms Bentley (631). She said: “So Shahreen’s behaviour is causing a lot of upset, she wanders off disrupts the patients etc on the ward (I assume by chatting – no filter) so much so that the Ward Managers are complaining and asking for her to be removed. She cannot take instruction despite them clearly explaining what she should do, when her breaks are etc, and when someone goes to check she is ok – she has disappeared. Lorraine absolutely agrees it is not a conduct issue – its her disability, she has no filter and no understanding of the parameters within the PSA role”

[46]Mrs Emmett replied to Ms Chetwood’s email (634) and said: “Well we’ve tried! I’ll do my best in the meeting, but I’m not sure we have any job where we can stop her being unintentionally disruptive”

[47]On 4 May 2023, Miss Harrison met with the claimant to discuss the PSA trial. We were provided with a typed note taken by Miss Harrison (1203) and some handwritten notes (2755). Miss Harrison recorded that she had told the claimant that ward managers had spoken to her about the claimant talking to the staff on wards and interrupting them whilst they were trying to work. It was said to have been agreed that they needed an improvement with talking whilst on the ward.

[48]On 10 May 2023, Miss Harrison again met with the claimant. We were provided with two notes prepared by Miss Harrison. The typed note said (1205): “Shahreen says she has been concentrating really hard on the way she is on the ward and trying not to talk as much. I explained that we had feedback from the ward including staff that Shahreens performance on the ward at the moment is exceptional. Even so much as the ward clerk stopping me on the corridor and mentioning it to me”

[49]The handwritten note (1202) said: “Shahreen has said she has made an effort with talking and I mentioned that the ward and staff had said there was a big improvement in Shahreen’s work this week. Congratulations and thanks were given”

[50]We were also provided with an email sent by Miss Harrison to Ms Bentley on 10 May (1201) about the claimant in which she said: “I’ve had a follow up meeting with Shahreen today. I have had some very good feedback from the ward and SA’s about her performance over the last few days. I had a conversation with Racheal and she said that you could see her concentrating on not talking and humming whilst working. Patient movement is being monitored”.

[51]It was Miss Harrison’s evidence that the positive comments in the meeting on 10 May were about the claimant’s cleaning only and not about an improvement in talking. We did not accept that evidence and found it to be entirely inconsistent with the email sent and what was said. If the claimant had continued to talk excessively, we would have expected the positive comments to have been recorded with caveats or focussed on a particular area of improvement, when the notes and email clearly demonstrated that the claimant’s talking to others had improved to the extent that she was praised for it.

[52]It was Miss Harrison’s evidence that she provided instructions to the claimant on yellow paper, when the claimant mentioned the need for yellow paper to her. The claimant denied that she did.

[53]It was Miss Harrison’s evidence that she would not have expected a colleague to tell someone not to talk as much. She felt that was not a PSA’s role and she would not expect them to do so. The claimant’s evidence was that it would have been alright for a colleague to have asked her not to talk so much. We could understand that one colleague would not be expected to give another colleague a managerial instruction, but did not accept that one colleague would not and could not tell a colleague to talk less.

[54]Miss Harrison was very clear in her evidence that the decision to end the claimant’s trial as a PSA and not to place her in that role permanently, was not a decision which Miss Harrison made. The decision appeared to have been one made by Ms Bentley, from whom we did not hear (albeit it could have been made by Ms Hibbert, as already explained being someone else from whom we did not hear evidence). There was no document which provided any detailed record of why the decision-maker had made that decision.

[55]It was the claimant’s evidence, that on 19 May 2023 she was informed that her trial had been unsuccessful and that she would not be assigned to the team on a permanent basis. She said she felt upset and confused. The claimant was under the impression that the trial had gone well, and she asked that she be told why she had not succeeded in it. It was the claimant’s evidence that she was informed verbally that she had failed as they could not find her routine and structure in the role. She said she asked for it in writing, but it was never received.

[56]We were shown an email of 10 May 2023 (684) in which a temporary staffing administrator informed Mr Joshua of the bank shifts undertaken by the claimant in March and April 2023. That recorded that the claimant had undertaken three shifts of bank work in March 2023 and seven shifts of bank work in April 2023. The shifts were undertaken on various different wards. It was the claimant’s evidence that this was the amount she normally worked on the bank. She also gave evidence that, when she worked on the bank, she always took shifts on wards where she had worked before and which she knew (and therefore they knew her and she knew the way the ward worked and some of the staff on it). We were not provided with detailed information about other shifts worked by the claimant on the bank. There was no evidence that Mr Joshua took any action about the claimant working on the bank, after being provided this information in May 2023.

[57]The claimant undertook a trial working as a Patient Champion in the ED from 22 May 2023. The role involved assisting the patients with things such a drinks, food, and contact with their relatives by telephone. There were two Patient Champions working at any one time. When the claimant was offered the trial, it was a relatively new role.

[58]Mrs Lewis gave evidence about the role and the unpredictable nature of working in the Emergency Department. She was not provided with the occupational health advice about the claimant. She met the claimant on 18 May 2023 and emailed Ms Chetwood after doing so (660). She said, “Shahreen came to find me today to introduce herself. I already know her! Leanne you likely will too – Chirpy young lady from the discharge lounge? I know I had my reservations, but I think she’ll be perfect for the role”

[59]Ms Chetwood met with the claimant on 31 May and confirmed what had been said in an email (672). The claimant informed her that the Patient Champion trial was going well, and she was enjoying it.

[60]It was clear from her evidence, that Mrs Lewis did not feel that the Emergency Department was the right place for the claimant to work and she did not think the trial was a success. She said that she was genuinely really concerned about the claimant carrying out the Patient Champion role. She said that the ED is the most unpredictable place in the whole hospital and social cues were integral to understanding what patients needed and in mitigating risk.

[61]Whilst Mrs Lewis provided evidence to us about why she perceived that the claimant’s trial in the Patient Champion role had not been a success, it was also her evidence that she did not make the decision about the claimant’s trial. It was not clear who did, albeit it was not someone from whom we heard evidence.

[62]We were shown some emails of 14 June exchanged between Ms Chetwood and the claimant. The claimant said she was really enjoying working as a Patient Champion and would like to stay working in the role. She said she had received really good feedback. Ms Chetwood forwarded the emails to Mrs Lewis (690) and others and asked them to sit down with the claimant and explain the issues and “then I suggest email it to her afterwards as I think you have to be direct with her and emailing the conversations you have had prevents confusion and for her to say she wasn’t aware”. It was said that it had been agreed that the claimant would stay in the role for two weeks. Ms Chetwood was going to ask Ms Clift for advice “because I do think she lacks social queues so its about best way of understanding things, for instance the comments about her being bullied etc. i don’t believe for one minute that the case but its her perceptions”.

[63]The claimant was told that she was not to be retained as a Patient Champion on about 14 June. She was initially retained in the role for a further two weeks (but that was extended).

[64]On 21 June Mrs Emmett and Ms Chetwood met with Ms Clift (without the claimant or her trade union representative in attendance). Ms Clift was the person with responsibility for patients with disabilities. Her role did not normally involve employees. We were informed by Mr Joshua that Ms Clift was not entirely comfortable doing so. We were provided with a handwritten note of the meeting (702). Amongst the things said in that note were: “can’t believe there hasn’t been problems before Her neurodiversity is far worse – going to have significant problems with employees and patients … Any patient roles will be difficult Anything said to her must be in writing”

[65]We were shown an email from Mrs Emmett to the claimant of 21 June (703). The claimant was told that Mrs Emmett and Ms Chetwood had met with Ms Clift that day (without the claimant or her trade union representative in attendance). It was said that Ms Clift had recommended that, for the time being, the claimant did not undertake any patient-facing roles. Mrs Emmett, in her witness statement, acknowledged that Ms Clift later said that was not what she had said. That was also the claimant’s understanding. Mrs Emmett explained that, in the meantime, the respondent would look for non-patient roles.

[66]Mrs Lewis spoke to the claimant on 23 June 2023. The conversation was confirmed in an email sent the following day (965). What was said in that email by way of explanation was: “I am happy for you to work bank CSW or PC shifts in ED on bank as these shifts would be booked at your discretion. We chatted about your additional needs and how this makes you more vulnerable in an unpredictable environment such as ED. Your personal safety is at the heart of my decision, and I do not feel I can offer you the support that you need and deserve”

[67]From the evidence which we heard, it was clear that Mrs Lewis had not personally worked with the claimant during the trial very frequently, if at all. She could not recall any incident which she had observed in which the claimant had not achieved what was required.

[68]In her email, Mrs Lewis also confirmed that the claimant could continue to undertake bank shifts in the Emergency Department. It was her evidence to the Tribunal, that she could not stop someone from doing so.

[69]On 27 June 2023 Mrs Emmett observed in an email to Ms Chetwood (706) that there was no “magic job” for the claimant and she went on to say “I’m also struggling with how she can continue picking bank shifts up with no complaints but we’re being told she can’t be a patient champion”.

[70]During the time in which she worked as a Patient Champion, the claimant was shouted at by a colleague. The claimant’s evidence was: “On 8th July 2023, there was an incident where one of my colleagues raised their voice at me, and a Police Officer who was manning the Emergency Department had to intervene. I was in the kitchen with my colleague referenced, I was cleaning and the colleague asked me why I had asked for a witness statement against her (her voice was raised at the time) I mentioned I hadn’t, she responded that she had been informed otherwise. I mentioned that a colleague had referenced that I had been mistreated by colleagues but nothing further. The colleague was still shouting at me, I was confused and didn’t know how to respond at which point the Police Officer entered the room and said it is her choice if she chooses to request a statement or not and that she couldn’t speak to me like that”

[71]We did not hear evidence from anyone else present when the incident occurred, and therefore we accepted the claimant’s account of what occurred. When she was asked about the statement referred to, the claimant explained the circumstances in which she had asked a different colleague to provide the claimant with a statement about the conduct of the person who had later shouted at the claimant about it. Nobody referenced the name of the other person, but there was no dispute that she was another Patient Champion.

[72]The claimant did not raise the allegation of shouting on the day that it happened. She first raised it when speaking to Mrs Emmett the next week. It was Mrs Emmett’s evidence that she thought she would have asked for the name of the colleague. Her evidence was that she provided the information to Mrs Lewis. We were not provided with any evidence that suggested anything had been done to investigate or to speak to the colleague about what had occurred. Mrs Lewis did not give evidence that she had spoken to the claimant or the colleague, and there were no records of her having done so. The documents which we were provided, detailed the respondent focussing on the Police Officer and the fact that they were unable to identify who the Police Officer was as it was not raised at the time. It was Mrs Lewis’ evidence that people shouted at each other all the time in the Emergency Department, and she would not expect anything to be done about it when someone did so. It was Mrs Emmett’s evidence that HR did not investigate matters, but they expected the manager to do so. In this case, she had left it to Mrs Lewis to investigate and to report back, which she believed she had done verbally. As Mrs Lewis had decided that nothing further was required, nothing further was done.

[73]On 14 July, Mrs Emmett sent the claimant an email following a telephone conversation that week (778) (which had included the claimant’s sister). She recapped on what had been said, including the claimant expressing concerns about the PSA role, the incident where she was shouted at by another Patient Champion and the adjustments needed. Mrs Emmett said, “Unfortunately most, if not all, of our wards can not reasonably be expected to write down all instructions due to how busy they are". It was said that the claimant would continue to work for a further two weeks as a Patient Champion.

[74]On 15 July 2023 the claimant was smacked on the bottom by another employee (male), shortly after he had told her that he would do so. We were provided with a statement made by the colleague in which he accepted that he had done so and in which he apologised (729). That colleague was given a written warning on 4 August (969), albeit nobody told the claimant what the outcome of the process had been. The colleague was initially suspended, but shortly afterwards returned to work. Nothing was done to assist the claimant with the fact that she might have to meet him at work or to discuss with her that she might do so. The claimant’s trade union representative complained that the claimant was given no support. It did not appear that she was.

[75]Mrs Emmett exchanged emails with the Head of Occupational Health and Wellbeing, Simon Brewer, on 14 and 20 July (767). He recommended that a referral to Access to Work would usually be beneficial. Mrs Emmett accepted that she had not done anything to action such a referral. It was her evidence that such referrals would be the responsibility of an employee and their trade union representative.

[76]On 21 July 2023 the claimant’s trade union representative made an early resolution request (810). He was told to use the relevant form, which he did on 24 July (2646). In that he stated that he wished to raise a formal grievance on the claimant’s behalf and explained the reasons why. Nothing happened in addressing the grievance until the meeting on 1 December 2023. It appeared that the respondent treated the matter as being considered under the informal part of the resolution process, even though it had been requested by the trade union representative that it be addressed formally.

[77]On 27 July 2023 it was proposed that the claimant undertake a trial working in the laundry department (854). She did not wish to do so. The trial did not go ahead. In an email of 31 July (914) the claimant said, “This is the third time I am being moved it is causing me a lot of anxiety and stress having to learn the routine of the job role and then they cannot provide the support I need it is very upsetting for me to keep hearing this”.

[78]The claimant commenced a period of ill health absence on 31 July 2023. She sent an email explaining that she was going off sick due to work related stress as a result of being moved to different roles, the lack of understanding of her disability, and the late notifications around placements. She provided a fit note on 4 August which described the reason for absence as being work related stress.

[79]An occupational health referral was made by Mrs Emmett on 18 August 2023. The claimant was critical of what was said in that referral in her email of 24 August (1057), as was Mr Akram in a subsequent email. In the referral Mrs Emmett said (1178 and 1190): “shahreen has a diagnosis of dyspraxia and dyslexia which was obtained ten years ago whilst at school. She is currently on the redeployment register but has failed two trials in both a clinical and non clinical role due to a failure to follow instructions and causing disruption within the team by telling staff detrimental things about them and then attributing that information to other members of staff”

[80]Mrs Emmett explained the use of the word “detrimental” with reference to the feedback which she had received from the trials and said she was repeating factual information.

[81]It was Mrs Emmett’s evidence that the claimant’s sickness absence “may have fallen through the cracks because of unusual circumstances” and “it was just unfortunate human error” that no one was initially identified as the manager responsible for managing her absence. That was because the claimant was still on the roster for the Discharge Lounge and had not been redeployed. Katie Topham, a Matron on the Discharge Lounge, was asked to manage the claimant’s sickness absence and agreed to do so on or around 18 September 2023 (1070). The deliberate decision was taken not to tell Mrs Topham anything about the background to the claimant’s absence or her early resolution request. She was expected to manage only the claimant’s sickness absence.

[82]A further occupational health report of 15 September 2023 (1063) stated that, in the advisor’s opinion with regard to the claimant’s neurodiversity, there was no reason why the claimant could not continue working in an HCA role. It was said she would be able to perform all roles within the remit of a band 2, however it was recommended that she worked in a smaller team to support her health and wellbeing. The advice from the previous report about reasonable adjustments was repeated.

[83]A first long term sickness absence meeting took place on 12 October 2023 (1090). It was Mrs Topham’s evidence that she found the meeting difficult and that she was caught completely off guard by Mr Akram raising wider issues that she had no idea about. She described herself as completely floored. Mrs Topham believed the issues being raised were completely irrelevant to the sickness absence meeting. She seemed to consider it to be entirely unnecessary to have any knowledge of the lack of role available for the claimant at the time, when considering whether she was fit enough to return to her role, and unnecessary to have any knowledge of what had preceded the claimant’s absence, even though she was recorded as absent with work related stress. The claimant left the meeting too upset to continue after she realised that Mrs Topham knew nothing whatsoever about the matters which had led to her being absent. It was Mrs Topham’s evidence that she intended to reconvene the meeting.

[84]After the meeting but on the same day, Mrs Emmett emailed Mr Akram (1149) referring to the meeting and telling him that neither Mrs Emmett nor Mr Joshua had been aware of the meeting. She proposed a meeting without the claimant. Mr Akram responded explaining that the claimant had broken down on at least three occasions so far and said that the claimant was struggling to leave the house at the time.

[85]In her evidence, Mrs Topham detailed what happened following her meeting with the claimant. She relied in part on Sharon Aspinall, the HR Officer who had also attended the meeting. Mrs Topham was unwell and did not attend work for a period in November/December 2023. She tried to telephone the claimant on 19 December. She emailed the claimant on 3 January and spoke to her on 4 January.

[86]The claimant entered her first Employment Tribunal claim on 30 November 2023. It was accepted that the claim was a protected act for the purposes of the claimant’s victimisation complaint.

[87]The first early resolution meeting took place on 1 December 2023 attended by Mrs Emmett, Mrs Lewis, the claimant, and her trade union representative. We were provided with notes (1147/1510). At the start of the meeting, Mr Akram said that a Tribunal claim for discrimination had been entered. Various issues were discussed. At the end of the meeting, Mrs Emmett said that the main aim was to return the claimant to work and she asked her about the adjustments which had been made for the claimant in the Discharge Lounge and whether she was in a position to return to work (it appeared to be common ground at this hearing that there had been no adjustments in place while the claimant worked in the Discharge Lounge). The claimant became upset and left the meeting. Mr Akram returned and said the claimant was too upset to carry on.

[88]On 10 December 2023 Mr Akram emailed Mrs Emmett and provided his notes of the meeting (1153). He said the meeting was incomplete and had stopped halfway through. He referenced the time since the resolution had been raised. He ended the email by urging any follow up actions to be done with a level of urgency. Mrs Emmett did not respond. It was her evidence that not doing so was not a deliberate or conscious act on her part, she was just really busy.

[89]On 4 January 2024 Mrs Topham emailed the claimant proposing various dates for a further long term absence meeting, to which Mr Akram responded by confirming that he was available on the 19 January (but not before) (1175).

[90]On 12 January Mr Akram emailed Mrs Emmett saying that it had been agreed that there would be follow up actions from the initial grievance meeting and he had not received any correspondence (1207). Mr Joshua replied to Mr Akram only and said that Mrs Emmett was off work and would be back on Monday. He went on to say, “Given the last couple of meetings Shareen has gotten upset and walked out, I think its best if we can park talking about the Res on Tuesday so we can get an understanding of how best to support her wellbeing needs”. Mrs Emmett’s evidence was that the response sent showed that responses were sent to Mr Akram’s enquiries. There was no evidence that Mrs Emmett ever substantively responded, after she returned.

[91]A long-term sickness absence review meeting took place on 16 January 2024, which was summarised in a letter. In February a further meeting which had been pencilled in (but not actually arranged) was cancelled as the claimant’s father was in hospital and was seriously ill and the claimant needed to be with him, which Ms Aspinall confirmed in an email to various people. Shortly afterwards, Mrs Topham was signed off work for some time and Kim Brown, Clinical Site Manager, attended a meeting with the claimant on 16 April 2024 in her place.

[92]On 30 January, Mr Akram emailed Mrs Emmett regarding the lack of letter, update or follow up actions following the meeting on 1 December (1803). He highlighted that the resolution could not be moved forward as the issues raised had not been resolved and he said the respondent could not appeal either as no correspondence had been received. It was Mrs Emmett’s evidence that she could not recall why she did not respond to this email, but she expected it was just her capacity at the time.

[93]On 14 February Mr Akram sent a further email to Mrs Emmett and Mr Joshua about the meeting and the absence of follow up correspondence (1245).

[94]A letter was sent to the claimant by Mrs Emmett on 16 February 2024 (1240) which stated that it was an “Informal Early Resolution”. It referred to the meeting on 1 December and the issues raised by the claimant’s trade union representative in that meeting. Mrs Emmett went on to say: “During the meeting your union representative confirmed that you were in the process of filing an application to the employment tribunal for disability discrimination including the concerns raised above in your application and I can confirm that the ET1 has now been received by us and our legal team has responded to your application denying those claims. Because of this, we are unable to proceed with your resolution request until the tribunal process comes to an end”

[95]The covering email of the same date which attached the 16 February letter sent from Mrs Emmett to the claimant (1267), said “As explained in my previous emails with Imran, we are unable to proceed with the resolution process until the outcome of the tribunal hearing”, before emphasising that the respondent was keen for the claimant to return to work in the right role and would continue to support her during her sickness absence.

[96]In an email also sent on 16 February, from Mrs Emmett to Mr Akram (1242), she also said: “As you are aware, at the time of our meeting you indicated that Shahreen had now lodged an ET1 in the Employment Tribunal and we have now received notification of that application which relates directly to the resolution request raised under LHT’s resolution policy. Just for clarification ELHT no longer has a grievance policy. We are therefore unable to continue with the resolution request or seek an outcome in relation to the issues raised in the ET1 until the tribunal process is completed and the Trust maintains it’s position stated in our response to the ET1 in that we deny the claims as alleged or at all. The minutes of the meeting you have provided are disputed and our notes have been provided to our legal team to be shared at the point of disclosure”

[97]Mr Akram responded to Mrs Emmett’s email challenging the delay and stating that in the resolution process there had always been a summary of the meeting. Mrs Emmett replied on the same date (1260) and said: “As I mentioned in my previous email, the notes of the meeting will be shared during the disclosure process – it’s clear that our version of events of that meeting differ significantly and our different version of the meeting will no doubt be discussed as part of the tribunal hearing … If you have any comments or queries in relation to Shahreen’s long term sickness and return to work then we are happy to discuss these. However, any queries in relation to the issues contained in the ET1 must now be directed to our legal team in the usual manner and won’t be responded to directly by us”

[98]In her evidence to the Tribunal, Mrs Emmett said that, in hindsight, she now knew that the resolution process could have continued whilst the Tribunal proceedings were ongoing. She said in her statement: “I was very concerned not to prejudice either the Tribunal proceedings or the resolution proceedings. I was worried about providing responses to Shahreen and Imran that might have been different to the Trust’s Response to the claim and I found it hard to see how it would benefit either party to answer specific questions that I felt like had been addressed in the Response. I was massively worried about prejudicing the Tribunal proceedings…”

[99]On 27 February Mr Akram emailed the Resolution Mailbox with an email which was headed “Resolution appeal”. He said that they were formally appealing the decision not to hear the claimant’s grievance as the informal grievance had not been actioned or addressed. He said, “I am in a rather strange position here as we are formally appealing a decision that is the employer refusing to hear the grievance”.

[100]On 27 February Mrs Emmett sent an email to Jane Wilkinson (an HR Business Partner) asking her to look at the resolution appeal (2746). She referred to the resolution outcome letter she had provided and the claimant’s Tribunal claim. She said that she was happy to continue to assist the claimant in finding a suitable role, “but to enter into any discussions in relation to the alleged disability discrimination (which is denied) could severely prejudice our case”.

[101]An occupational health report of 27 March 2024 said that in the opinion of the occupational health physician the claimant was fit to return to work (1276).

[102]Between 15 and 19 April 2024 there was an exchange of emails between Mr Akram and Mrs Emmett about arrangements for the resolution appeal. On 18 April (1342) Mrs Emmett said, “We have now received advice from our legal team who are happy for us to proceed with our internal procedures”. Mr Akram questioned Mrs Emmett’s continued involvement in the appeal process in a subsequent email of 18 April, which he then followed up (without response) with emails on 23 and 26 April. On 29 April (1339) Mrs Emmett apologised for the delay in responding, explained there was a high volume of work and “we are dealing with in order of priority”. She went on to explain that the Deputy Director of HR had suggested that the appropriate course was to move to a formal resolution meeting, and it would then be for a senior manager to decide relevant matters (which was now being arranged).

[103]On 25 April there was an exchange of emails between Mr Akram and Ms Aspinall about the long-term absence meeting. The claimant was also sent the emails. Ms Aspinall said she was sorry it was taking a while for her to find a suitable area for the claimant to return to and that in the meantime the claimant would be recorded as on authorised leave and would be paid. Ms Aspinall said that some of the onus was on the claimant to find a suitable alternative position “as she does not want to return to Patient flow”. The claimant responded on 26 April asking what she meant “as it was not my choice to leave I really enjoyed working there” (1315).

[104]On 29 April the claimant emailed Ms Aspinall, highlighting that she had not sent the claimant a list of vacancies which she had mentioned she would send, but saying she was really interested in a vacancy she had identified herself on ward C5 (1327). Ms Aspinall said the Matron was not back until Wednesday or Thursday the following week. The claimant said she would wait for an update. On 2 May the claimant chased for an update. Ms Aspinall emailed the claimant (973) and said, “I have spoken to Priscilla Manuel the Matron for C5 and she has made me aware that C5 is a high acuity ward and sometimes the HCAs are working in bays on their own and she is worried that they may not always be enough support on there for you”. She suggested a meeting for the claimant with the Matron.

[105]On 19 July 2024 the claimant emailed Ms Aspinall to say she had seen a vacancy for an HCA on the Coronary Care Unit (CCU) in which she was interested (1405). Ms Aspinall responding by asking whether the claimant had started the trial on C5, but the claimant responded to say she had not as she was waiting to hear and asked Ms Aspinall to look into CCU. Ms Aspinall said that the claimant could not start a trial on C5 and another area. She said that “I can ask about Coronary Care however it is a high acuity area and there will be less support for you on there and not sure it would be a good setting for you” (as the claimant highlighted in evidence, this was also what Ms Aspinall had previously said about C5). The claimant replied on 22 July to a request to say why she did not want to work on C5 (1402), by explaining that was not what she had said, but she wanted to try out Coronary Care and asked for a trial to be set up. She chased on 26 July, having heard nothing. Ms Aspinall replied on 29 July to say a trial had been organised on C5 but explained it had not been arranged due to the sickness of the ward manager. Mr Akram responded to the email highlighting that no trial had been organised as promised and as there was a preference for CCU and a closing vacancy, he asked that trial be arranged (1400). The claimant said she would like to trial on CCU as she felt it would be more suited to her.

[106]On 5 August 2024 Mrs Emmett sent an email to various people about the claimant’s bank shifts (1426). She provided a table showing the bank shifts undertaken by the claimant in July and the start of August and explained to the recipients that she had received “notification” that the claimant had recently picked up a bank shift in one of the recipient’s wards. She went on to say, “Please could you let us know if you, or any members of your team remember Shahreen and if you do, was Shahreen able to undertake these duties, if she needed assistance, if she was able to work independently and if any problems arose during this shift”. We were not provided with any evidence of any responses adverse to the claimant (or indeed of any responses at all).

[107]On 6 August 2024 Mrs Emmett emailed the claimant and Mr Akram (1415). She said that there was a common objective, which was for the claimant to return to work in a role where she was fully supported, and the right adjustments had been made. She then said, “As we are all aware there’s already been two unsuccessful redeployment trials and there’s currently an ongoing disability discrimination case waiting to be heard which cites that the correct adjustments were not made in the two previous trials”. She referred to the occupational health recommendations made in February 2023. She referred to the claimant’s stated wish to go to CCU and said there was no reason given for her change of mind in relation to C5. She then said “CCU is not suitable as it’s a high activity ward, the management would be unable to support Shareen in the same way as ward C5 could, and no shadowing has taken place”. She went on to say that, unless there was a specific reason why the claimant could not go to C5, the respondent should follow that trial. She then said: “It’s also been brought to my attention that Shareen has picked up a number of bank shifts over the last few weeks on various wards, without notifying us or letting the management team know that adjustments are needed. This must only be causing Shareen difficulties to work on a ward with no adjustments and we ask that no more bank shifts are undertaken until the trial on C5 takes place and we can ensure that Shareen has the correct adjustments in place whilst working bank shifts”

[108]Included in the bundle of documents was an email from DeAnne Staveley, the Head of Employment Services, to Mrs Emmett dated 13 August 2024 (1451). It was sent in response to an enquiry made by Mrs Emmett in which she said she was seeking advice from the experts (1452). In that email seeking advice, Mrs Emmett said, “I’m really concerned that Shahreen is working without recommended adjustments and that will impact on patient safety. I don’t think we can restrict Shahreen to certain roles but if we could I’d like to restrict her to picking up certain shifts only on quieter roles. I’m drawing a complete blank on this so any advice you can give on this, would be great”. The occupational health advice appeared to have been provided, because the response ran through the advice given. The advice given in response by Ms Staveley was that because bank work was unpredictable, there was no guarantee that any of the recommendations could be followed. As the person in charge of the different units to which the person could be assigned to work might be unaware of recommendations, it was said this posed a risk to patients. The conclusion given was that the things sought were not something which could be accommodated on the bank team. Notably, Ms Staveley ended by asking Miss Emmett whether “we should be restricting her based upon the above knowledge”.

[109]On 11 September (1549) the claimant emailed Mrs Emmett and said she was ready to start the trial on CCU on 16 September. With regard to bank shifts, she said she was confused about what had been said about bank shifts in the meeting as she believed Mrs Emmett had said in a previous meeting that she could do bank shifts if she limited herself to wards she was familiar with. She highlighted there had never been any concerns about her doing bank shifts. She said she found it upsetting and felt that she had been forced off doing bank shifts when no concerns had been raised. In the Tribunal hearing, Mrs Emmett denied that she had ever told the claimant what was said in this email.

[110]On 11 September Mrs Emmett emailed the claimant (1547) and stated that the trial on CCU would be for two weeks. None of the witnesses from whom we heard could explain why the trial was arranged for two weeks, rather than four. Mrs Robinson’s evidence was that she had undertaken trials for two weeks with other employees. It was also her evidence that one such trial had been completed successfully. In her witness statement, Mrs Emmett described the length of the trial as “just human error” going on to say that she was confident that it had nothing to do with the claimant’s resolution request or Tribunal proceedings (albeit it was difficult to know how she could make such an assertion when she was unable to explain why the trial was arranged for only two weeks).

[111]In the 11 September email Mrs Emmett also addressed bank work. She said: “As discussed in our last meeting, we are unable to provide you with the support and adjustments requested whilst picking up bank shifts, and I have asked for your access to bank shifts to be restricted your until the trial is over. If the trial is successful we can then reestablish your access to bank shifts on CCU so you can work additional shifts but with support in place”

[112]On 13 September 2024 Mrs Emmett emailed Ms Pearson, the non-medical temporary staffing manager (1552), and said, “Please can you restrict the bank shifts for Shahreen Hussain? There’s no disciplinary issues, but she needs certain adjustments we can’t offer on bank”. Ms Pearson responded and said she would restrict them now (followed by an emoji).

[113]It was the claimant’s evidence that she had never been asked to notify the respondent if she wished to undertake bank shifts. We heard no evidence that any specific issues had arisen as a result of the claimant working bank shifts. Following this instruction, the claimant ceased to undertake bank shifts. She has more recently recommenced bank work. The claimant explained that she was told not to work on the bank until after the trial on C5 had taken place.

[114]During cross-examination, Mrs Emmett stated very clearly that the decision to stop the claimant undertaking bank shifts was not her decision. She explained that the decision was made by Ms Staveley, the Head of Employment Services. We did not hear evidence from Ms Staveley. We were not shown any document which recorded Ms Staveley making the decision, save for the email of 13 August in which she clearly did not make the decision, but rather asked Mrs Emmett what the decision would be. The evidence given by Mrs Emmett also appeared to be entirely at odds with the terminology which she used herself in the email of 11 September in which Mrs Emmett clearly stated that she personally had asked for the bank work to be restricted, suggesting that those operating the bank would have been acting on her request.

[115]On 13 September, Mrs Emmett emailed Mrs Robinson (1554) and set out the adjustments recommended in the occupation health report.

[116]On 24 September Mrs Emmett texted Mrs Robinson (1569) and asked how the claimant was doing on her trial? Mrs Robinson responded and asked for a meeting. Mrs Emmett confirmed early on the morning of 25 September that a Teams invite had been sent. That led to a conversation about the trial between Mrs Robinson and Mrs Emmett. In her evidence to us at the Tribunal hearing, Mrs Robinson was clear that she had not decided to end the trial early. She did decide that for the last days of the two-week trial, the claimant should work alongside another employee. From what was said by Mrs Robinson, there was no particular urgency for a meeting to be held with the claimant.

[117]In an email sent in the afternoon of 25 September, Mrs Robinson provided Mrs Emmett with what was said to be a summary of the 1.5-week trial (1571). Mrs Robinson set out some particular occasions when issues had arisen, including the claimant taking too long to answer an emergency buzzer and the claimant giving a patient a drink, when the patient was nil by mouth, causing coughing. The claimant disputed that what was said in the list had occurred, and it was her evidence that she had not been told at hand-over that the specific patient was nil by mouth, and she had reported the drink to the nurse after it had been given. Within the email, one of the points stated was, “She is asking questions all the time which is hindering staff to get on with their work, some staff have mentioned that they feel they have done all the work

[118]In conclusion, in the email, Mrs Robinson said, “I feel she will not be able to work independently, as this is a very fast pace and unpredictable working environment. I feel she will be compromising care and using shortcuts for the work to be done and I she lack awareness of the situation”.

[119]In reply to Mrs Robinson, Mrs Emmett informed her that she was waiting for the claimant’s trade union representative to confirm whether or not he was available for a meeting on 26 September at 9.30 am.

[120]Mrs Emmett forwarded the email with Mrs Robinson’s comments to Mr Akram. When doing so (1576), she said that the feedback could either be given to the claimant the following day or, alternatively, they could let the claimant know that the trial would not be continuing past the end of the week, and a further meeting would take place when Mr Akram was available to give feedback and discuss the next steps. Mr Akram responded briefly and copied the email trail and attachment to the claimant. Mrs Emmett responded that it was unfortunate that he had done so. She went on to say (1574 – at 4.45 pm), “The reason for asking for the face to face meeting urgently, and at short notice, was that Shahreen didn’t have to be informed about the feedback via email but instead would be able to have a conversation with the trial manager about and be able to respond … I note that you haven’t responded to my query in relation to your attendance tomorrow so I’ll continue with the meeting which will allow Shahreen to receive the feedback face to face and opportunity to ask questions of Doris”.

[121]Mr Akram replied that evening (1573) and confirmed he could not attend the following day’s meeting after the late notification. He referred to the cancelled bank shifts and went on to say “You are aware SH has asked for such meetings details to be presented prior to having them so she can absorb the information, understand, and have sufficient time to respond as was her request due to her disability. The effect of not following this process means she is directly at a detriment and regardless of this you have rarely followed this process”.

[122]Mr Akram’s email referred to having spoken to the claimant, who had just finished her shift, and he said she was unaware of the meeting the following day. The claimant’s evidence was that she was on shift at the time she had been copied into Mr Akram’s emails, and she only saw the email that evening after she had finished her shift. She was due to work the following day, so only glanced at the feedback, she did not read it in full.

[123]On the morning of 26 September, Mrs Robinson and Mrs Emmett met with the claimant and told her that the trial was not going to continue. The claimant was not accompanied. The claimant was not given the reasons in that meeting, as her representative was not available to attend. It was the claimant’s evidence that she felt upset and was visibly distressed and pleaded to be afforded the right to representation but was told she could not. It was also the claimant’s evidence that she was told that she would be expected to take part in a capability hearing which could result in her dismissal. Both Mrs Emmett and Mrs Robinson in their evidence explained that, as it was an informal meeting, they considered that the claimant did not have an entitlement to be accompanied.

[124]After the meeting, the claimant spoke again to Mrs Robinson and told her that she was anxious, could not concentrate on the unit and wanted to go home. She did not want to come into work the following day. Mrs Robinson agreed that the claimant could go home and emailed Mrs Emmett to confirm what had occurred (1582). She was clearly concerned about the claimant from what was said. The claimant did not undertake the remainder of the two-week trial on CCU.

[125]Later that day, Mrs Emmett emailed the claimant (1593). She said she was sorry if the claimant had felt anxious after the meeting. She said, “We were aware that Imran was unable to make the meeting … however, because of the clinical issues raised in the feedback, it was important that we met with you to confirm that the trial had ended and the reasons why”. Based upon the evidence which we heard, this statement was entirely incorrect, as Mrs Robinson had not decided to end the trial, she had simply raised concerns and said the claimant would need to be supervised by another member of staff at all times (which she said she knew she could do).

[126]After confirming that a meeting would be arranged with Mr Akram present, Mrs Emmett went on to say: “We’ve now reached the stage where we need to hold a capability hearing for a panel to decide whether or not you are able to fulfil a role within the Trust. If they decide that there is no role that matches your skills, then they could decide to dismiss you from the Trust”

[127]A further meeting was arranged for 10 October when the feedback was given, being a date when Mr Akram could attend.

[128]In the bundle of documents, was a note which was headed formal resolution outcome and dated 7 November 2024 (1644), but which was not the formal resolution outcome (as that was contained in a letter dated 21 November, see below). The writer said that it would have been reasonable to have delayed the meeting with the claimant at the end of the CCU trial for a couple of hours to allow the claimant time to find support from a colleague or another trade union representative as Mr Akram could to attend. It was also recorded that, on reflection, one week and three days was not ample time to allow the claimant a fair opportunity to meet the expected standards of the trial.

[129]The formal resolution was heard by Laura Loveday, the Assistant Director of Nursing Medicine and Emergency Care. It was also attended by Jo Hargreaves (Senior HR Business Partner), the claimant, Mr Akram, the claimant’s sister, and (for one of the meetings) Ms Clift. It was conducted over three meetings on 28 August, 11 October and 8 November 2024. We were provided with notes.

[130]The formal resolution outcome was set out in a letter from Ms Loveday of 21 November 2024 (1709). That letter recapped on the issues which had been raised and what had been heard. In the conclusion, the claimant was offered a four-week trial on ward C5 with a list of specific support set out. We did not hear evidence from Ms Loveday and will not reproduce most of her findings in this decision. In answer to the first question asked, about who made the decision not to hear the resolution points relating to disability discrimination, Ms Loveday said: “The Divisional Senior HR Business Partner, Lindsay Emmett advised that an Employment Tribunal Claim had been submitted by Shahreen prior to the Resolution being raised. The Trust’s solicitors had submitted a robust legal response which would be heard at Tribunal”

[131]In answering questions about bank shifts, Ms Loveday said (1711): “Unfortunately, due to the unpredictable nature of Bank work, and after working with our Bank Team they were unable to guarantee you they would be in place for every bank shift as explained above. We have been unable to establish a specific reason for the delay in restricting bank shifts after the CCU trial failed.” And later (1713): “I have established that the issues raised around behaviours and performance were not serious enough to warrant a restriction from picking up Bank shifts.”

[132]With regard to the notification of the CCU trial not being successful (1712), Ms Loveday said (amongst other things): “I believe that it would have been reasonable to delay the meeting for a couple of hours to allow you time to find support from a colleague or other TU rep if IA could not attend … I do feel that on reflection 1 week and 3 days was not ample time to allow you a fair opportunity to meet the expected standards of the trial”

[133]A meeting took place on 23 December 2024 when the claimant was provided feedback from Mrs Robinson following the CCU trial. Mr Akram sent an email which recorded his summary notes of the meeting on the same day (1743). In her witness statement, Mrs Robinson said that the notes were not accurate, but during her crossexamination it was established that she did not mean that the notes were not an accurate record of what had been said, rather she did not agree that the points raised by Mr Akram had been correct. It was recorded that Mrs Robinson had said that she produced routine notes on yellow paper, and she assigned a buddy for two weeks and the claimant was supernumerary. There was discussion of the incidents during the trial which Mrs Robinson also evidenced during the Tribunal hearing.

[134]On 24 December 2024 the claimant provided her own written response to the feedback which had been given regarding the CCU role (1675). She provided her responses to the incidents which it was alleged had arisen.

[135]On 6 January 2025 the claimant began a trial on ward C5. It was successful. She has been working on that ward as an HCA since the trial. Ward C5 is a small ward with dementia patients. Those patients will stay on the ward for a longer period than some other patients. Those patients have their own challenges, which may make what is required of the claimant during a shift unpredictable.

[136]The formal resolution was appealed. The resolution appeal was heard on 6 and 25 March 2025. We were provided with notes (2693). It was heard by a panel chaired by Sharon Gilligan, Chief Operating Officer and Deputy Chief Executive (from whom we heard evidence). The panel also included Arif Patel, Deputy Director of Integrated Care, Partnerships and Resilience, Alexis Brown, Head of HR, and Julie Rigby, as a Trade Union representative on the panel. The claimant, Mr Akram and the claimant’s sister all attended, as did Ms Hargreaves and Ms Loveday. On the second day, Mrs Gilligan was recorded as saying “We acknowledge that the advice given in relation to issues covered by the ET was incorrect. Lindsay isn’t employed by the trust in a legal capacity but acting as a HR business partner” and later confirmed “Have I not just said that Lindsay was wrong?” and “As I said, Lindsay was incorrect in her advice”.

[137]Ms Hargreaves said (2712) “I agree that it is crazy that the trial finished in ED but then it was confirmed Shahreen could work on bank. We did question that as it made no sense. Lindsay does agree with that but that was Zoe’s decision not Lindsay’s”. Later in the meeting she said (2729) “We recognise the resolution didn’t follow the normal pattern, which we acknowledged”. At the end of the meetings (2737), Mrs Gilligan said “I think there has been some bad advice given. I don’t necessarily think with any malice but there have been things misinformed which we corrected early on and believe we have allowed everything to be raised. I think there are some things that could have been handled better”.

[138]In her evidence to this Tribunal, Mrs Gilligan said that very early on it had struck her that the redeployment process had gone on for much longer than the respondent would have ordinarily wanted it to. Amongst other things, it was Mrs Gilligan’s evidence that it had not appeared to her that the claimant had consistently had a buddy during her redeployment trials, it was unclear why the trial in ED had been unsuccessful, and she did not feel there was sufficient evidence to illustrate that the claimant was properly supported after the incident in ED.

[139]The outcome to the claimant’s resolution appeal was provided in a letter from Mrs Gilligan of 11 April 2025 (2690). Amongst other things, the following was said: “The panel agreed that there were several failures to follow the Trust processes entirely. There were gaps in communication during the redeployment process, and it was unclear in documentation why decisions were made. You were left unclear why trials in areas as part of the redeployment process had been unsuccessful for which I would like to apologise on behalf of the Trust. During your experience within the Trust and the redeployment process, it is clear that there were gaps in the support provided to you regarding reasonable adjustments. You provided examples where there was not a consistent approach to ensuring you had the required reasonable adjustments during meetings or in the workplace. It is agreed that there were missed opportunities and the Trust needs to do more to support colleagues with workplace adjustments. … [with regard to the lack of communication about the outcome to the other employee’s disciplinary process] The panel listened to your experience and agreed that learning can always be taken to improve processes. There were gaps in communication, and clarity around policy utilisation during an expedited process can be improved. The panel recommends that the Head of HR reviews this process to ensure it is fit for purpose. Your union representative was concerned about why you could not discuss your resolution. It was clarified that this was due to a submission for a claim at the Employment Tribunal via ACAS. It was made clear at the start of this process by Alexis Brown, Head of HR, that you could discuss any element of your experience in this room. It was repeatedly clarified that this was an error in the advice provided to you. I appreciate how frustrating this is for you, as if this had been heard at the time, we might not be in this position two years later … … it was agreed that there are lessons to be learned … Finally, I would like to apologise for the distress that this has caused you, we are committed to learning lessons from this process and wish you well in your role in C5.”

[140]In the bundle of documents was a document prepared by Ms Clift, Specialist Nurse learning Disability and Autism (2556). It was dated 15 October 2023. It was about the claimant. We did not hear evidence from Ms Clift. It confirmed, with reference to the claimant’s neurodiversity, that the claimant could be verbally expressive and was not always able to regulate when a conversation should end. Ms Clift said she had attended numerous meetings with HR and occupational health and provided advice as requested. Ms Clift described that she became aware of potential difficulties with the claimant’s placement in ED when she was contacted by HR and said, “I reiterated at the time that I believed it essential that the people working with and supporting Shahreen have an understanding of neurodiversity and are following the reasonable adjustments we had recommended in her OH report”.

[141]In the bundle of documents was a wellbeing and adjustments passport prepared by the claimant (1995). We understood that to now be in place. That is a document which says that its purpose is to provide a documented record of an individual’s needs, which would allow them to function to the best of their ability in a supportive environment, without prejudice. It says that the completion of the passport is voluntary, however all employees should be offered the opportunity to complete a passport. In that document, the claimant explained the adjustments required. She said that she needed things in writing when she had a one-to-one meeting or discussions/meetings. It also said that she needed documents printed on yellow paper. The claimant described some of her communication challenges, including saying that she sometimes talks too much, and it was said that it was helpful if the reader reminded the claimant when she was doing this. A work buddy was described as helpful. When Mrs Gilligan was asked about the passport, it was her evidence that whilst passports were relatively new in their present format, they had been in place previously with a different name.

[142]The document we admitted on the second day of the hearing, was a decision of the Solicitors Disciplinary Tribunal from 2018 (2755A). One of the respondents was Mrs Emmett. She did not attend the solicitors disciplinary tribunal hearing for reasons she explained to us in evidence and was represented by her husband. We do not need to reproduce the decision of the tribunal which arose from matters relating to the finances of, and sale of, a solicitor’s firm. Mrs Emmett gave us evidence about what occurred after the decision. She said that she had not been prosecuted, but her husband had faced a criminal trial. A sizeable number of documents had been disclosed as part of the criminal proceedings which had not been available to the claimant and her husband at the time of the disciplinary tribunal hearing. Her husband was acquitted of the disciplinary charges which he faced.

[143]This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider in order to decide if the claims succeeded or failed. If we have not mentioned a particular point, it does not mean that we have overlooked it, but rather we have either not considered it relevant to the issues we needed to determine or we have not considered it necessary to refer to in these reasons.

The Law

[144]The claim for direct discrimination relies upon section 13 of the Equality Act 2010 which provides that: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[145]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur, and these include any other detriment. The characteristics protected by these provisions include disability.

[146]Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different, although it is not required that the situations must be precisely the same.

[147]The respondent’s counsel, in his submissions, addressed the comparison required in a direct disability discrimination complaint. He referred to the EHRC code of practice, Bennett v MITAC Europe EA, and what was said in the IDS handbook about that case. In summary, the comparator should be someone with the same level of ability as the claimant, but not her disability.

[148]Section 136 of the Equality Act 2010 sets out the way the burden of proof operates in a discrimination case and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.

[149]At the first stage, we must consider whether the claimant has proved facts on a balance of probabilities from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This is sometimes known as the prima facie case. It is not enough for the claimant to show merely that she has been treated less favourably and that she has a protected characteristic. In general terms “something more” than that would be required before the respondent is required to provide a nondiscriminatory explanation. At this stage we do not have to reach a definitive determination that such facts would lead us to the conclusion that there was an act of unlawful discrimination, the question is whether it could do so.

[150]If the first stage has resulted in the prima facie case being made, there is also a second stage. There is a reversal of the burden of proof as it shifts to the respondent. We must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. To discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[151]In practice, Tribunals normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, second, whether the less favourable treatment was on the ground that the claimant had the protected characteristic. However, a Tribunal is not always required to do so, as sometimes these two issues are intertwined.

[152]In most cases there is a need to consider the mental processes, whether conscious or unconscious, which led the alleged discriminator to do the act. Determining this can sometimes not be an easy enquiry, but we must draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). The subject of the enquiry is the ground of, or the reason for, the alleged discriminator’s action, not his or her motive. We need to be mindful of the fact that direct evidence of discrimination is rare, and that Tribunals frequently have to infer discrimination from all the material facts.

[153]The protected characteristic does not have to be the only reason for the conduct, provided that it is an effective cause or a significant influence for the treatment.

[154]The explanation for the less favourable treatment does not have to be a reasonable one. Unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment. It cannot be inferred from the fact that one employee has been treated unreasonably, that another employee without that disability would have been treated reasonably.

[155]The way in which the burden of proof should be considered has been explained in many authorities, including: Barton v Investec Henderson Crosthwaite Securities Limited

[2003] IRLR 332

; Shamoon v Chief Constable of the RUC

[2003] IRLR 285

; Hewage v Grampian Health Board

[2012] ICR 1054

; Igen Limited v Wong

[2005] ICR 931

; Madarassy v Nomura International PLC

[2007] ICR 867

; and Royal Mail v Efobi

[2021] UKSC 33

. The claimant, in particular, emphasised the first of these Judgments and the guidelines given in it.

[156]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if — (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[157]For unfavourable treatment, there is no need for a comparison, as there is for direct discrimination. However, the treatment must be unfavourable, that is there must be something intrinsically disadvantageous to it. We were referred to the lead case of Williams v Trustees of Swansea University Pension and Assurance Scheme

[2018] IRLR 306

. Being treated unfavourably means that the claimant must have been put at a disadvantage. The claimant’s counsel submitted that there was a relatively low threshold for demonstrating that treatment was unfavourable.

[158]In Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

the Employment Appeal Tribunal held that: ''the approach to s 15 Equality Act 2010 is now well established … In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”

[159]Pnaiser v NHS England

[2016] IRLR 170

outlined the correct approach to be taken: “From these authorities, the proper approach can be summarised as follows:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises….

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (h) Moreover, the statutory language of s.15(2) makes clear … that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so … (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed.”

[160]In his submissions, the claimant’s counsel relied upon Bodis v Lindfield Chistian Care Home Ltd

[2024] EAT 65

in asserting that the something arising need only be a minor part of the causation. We noted that, in his Judgment, James Tayler HHJ emphasised that the key question is that set out in the passage which we have quoted from Pnaiser and he said that the something which causes the unfavourable treatment need not be the main or sole reason for it, but it must have at a least a significant (or more than trivial) influence (emphasising that the reference to trivial assists because it refers to something that is causally irrelevant).

[161]The respondent’s counsel submitted that the something arising must be proven by the claimant and be shown to be an effective cause of the unfavourable treatment.

[162]Section 15(1)(b) provides that unfavourable treatment can be justified where it is a proportionate means of achieving a legitimate aim. That requires: identification of the aim; determination of whether it is a legitimate aim; and a decision about whether the treatment was a proportionate means of achieving that aim. The claimant’s counsel emphasised that, for the respondent to succeed, the aim must be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so. He also warned us not to accept without scrutiny the employer’s protestations about proportionality, relying upon Hardys & Hansons plc v Lax

[2005] IRLR 726

. It is relevant to consider whether or not a lesser measure could have achieved the employer’s legitimate aim. The respondent’s counsel emphasised that proportionality was a key question in justification and cited passages from O’Brien v Bolton St Catherine’s Academy

[2017] EWCA Civ 145

(in which it was said we must accommodate a substantial degree of respect for the judgement of the decision-maker, whilst we are responsible for striking the ultimate balance) and Hensman v MOD

UKEAT/0067/14

[163]We are required to take into account the EHRC Code of Practice on Employment. In relation to objective justification guidance is provided in paras 5.11, 5.12 and 4.25-4.32. It is for the respondent to justify the practice, and it is up to the respondent to produce evidence to support its assertion that it is justified. We must ask ourselves whether the aim is legal, non-discriminatory, and one that represents a real, objective consideration? We must then ask ourselves whether the means of achieving the aim are proportionate? Treatment will be proportionate if it is ‘an appropriate and necessary’ means of achieving a legitimate aim. Necessary does not mean that it is the only possible way of achieving the legitimate aim, it will be sufficient that the same aim could not be achieved by less discriminatory means.

[164]Section 20 of the Equality Act 2010 imposes a duty to make reasonable adjustments on an employer. Section 20(3) provides that the duty comprises the requirement that where a provision, criterion or practice of the employer’s puts a person with a disability at a substantial disadvantage in relation to a relevant matter in comparison with people who do not have a disability, to take such steps as it is reasonable to have to take to avoid the disadvantage. That requires not only the existence of a disability, but also: identification of a PCP; and knowledge (actual or constructive) on the part of the employer.

[165]Section 21 of the Equality Act 2010 provides that a failure to comply with the requirement set out in section 20 is a failure to comply with a duty to make reasonable adjustments. Schedule 8 of the same Act also contains provisions regarding reasonable adjustments at work.

[166]Environment Agency v Rowan

[2008] IRLR 20

is authority that the matters a Tribunal must identify in relation to a claim of discrimination on the grounds of failure to make reasonable adjustments are:a. the provision, criterion or practice applied by or on behalf of an employer;

b. the identity of non-disabled comparators (where appropriate); and

c. the nature and extent of the substantial disadvantage suffered by the claimant.

[167]The requirement can involve treating those with a disability more favourably than those who do not have a disability.

[168]Whether something is a provision, criterion or practice should not be approached too restrictively or technically, it is intended that phrase should be construed widely.

[169]A Judgment relied upon by the respondent was that of Elias LJ in Griffiths v Work and Pensions Secretary

[2017] ICR 160

. That was a case in which the Court of Appeal provided clear guidance on PCPs, when looking at the application of a particular policy (which, as here, had disability and adjustments addressed within it). With reference to an earlier case, it was confirmed: “when considering the question of reasonable adjustment, it is critical to identify the relevant PCP concerned and the precise nature of the disadvantage which it creates by comparison with its effect on the nondisabled. The importance of this is that until the disadvantage is properly identified, it is not possible to determine what steps might eliminate it”

[170]He then went on to observe the position where reliance was being placed on an argument that: “the relevant PCP was the general policy itself. If that is indeed the correct formulation of the PCP, then the conclusion that the disabled are not disadvantaged by the policy itself is inevitable given the fact that special allowances can be made for them … logically, it means that there will be no discrimination even where an employer fails to modify the policy in any particular case. The mere existence of a discretion to modify the policy in the disabled worker’s favour would prevent discrimination arising even though the discretion is not in fact exercised and the failure to exercise it has placed the disabled person at a substantial disadvantage”

[171]A one-off act can be a PCP, but it is not necessarily the case that it is. The claimant’s representative referred to Ishola v Transport for London

[2020] IRLR 368

a case in which the following was said: “it is significant that Parliament chose to define claims based on reasonable adjustment … by reference to these particular words, and did not use the words 'act' or 'decision' in addition or instead. As a matter of ordinary language, I find it difficult to see what the word 'practice' adds to the words if all one-off decisions and acts necessarily qualify as PCPs … If something is simply done once without more, it is difficult to see on what basis it can be said to be 'done in practice'. It is just done; and the words 'in practice' add nothing …In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of … the duty to make reasonable adjustments [is] intended to address. …In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that 'practice' here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or 'practice' to have been applied to anyone else in fact. Something may be a practice or done 'in practice' if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. …in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to 'practice' as having something of the element of repetition about it.”

[172]In emphasising the breadth of what can be a PCP, the claimant’s counsel also placed reliance upon Carreras v United First Partners Research

UKEAT/0266/15

[173]The respondent’s counsel relied upon Nottingham City Transport v Harvey [2012] 10 WLUK 206 on the requirement addressed in Ishola, where it was said of a PCP that: “although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. “Practice” has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply.”

[174]The claimant’s representative emphasised that the claimant need only show that there is a possibility that the adjustment would be successful. He relied upon Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

in saying that there need not be a good or real prospect of a proposed adjustment removing the disadvantage of the employee with a disability, for that adjustment to be reasonable. It does not have to be completely effective. The respondent’s representative relied upon the same case in saying that we needed to consider whether there was a prospect of the adjustment alleviating the disadvantage identified.

[175]When considering reasonable adjustments, the Tribunal took into account the EHRC Code of Practice on Employment, including paragraphs 4.5 and 6.10 on what is a provision criterion or practice.

[176]Section 27 of the Equality Act 2010 says: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

[177]The first question is whether the claimant did a protected act. If the claimant has done the protected act, for victimisation the next question for us is whether the respondent subjected the claimant to a detriment because of that protected act, in the sense that the protected act had a material or significant influence on subsequent detrimental treatment. No comparator is required, but the claimant must show a link between the detriment and the protected act.

[178]That exercise has to be approached in accordance with the burden of proof.

[179]If we conclude that the protected act played no part in the treatment of the claimant, the victimisation complaint fails even if that treatment was otherwise unreasonable, harsh, or inappropriate. Unreasonable behaviour itself does not necessarily give rise to any inference that there has been discriminatory treatment.

[180]The word detriment in section 27 is to be interpreted widely. The key test is for us to ask ourselves: is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to her detriment? An unjustified sense of grievance would not pass this test, but the test is framed by reference to a reasonable worker, so it would be enough if a reasonable worker would or might take such a view.

[181]The respondent placed some reliance upon the decision of the House of Lords in Chief Constable of West Yorkshire v Khan

[2001] ICR 1065

. In that case, particular emphasis was placed upon whether the claimant was treated less favourably by reason that he had brought proceedings under the Act. The Judgment confirmed that an employer might take some action which was simply a reasonable response to the need to protect the employer’s interests as a party to the litigation. That decision followed from Cornelius v University College of Swansea

[1987] IRLR 141

. The House of Lord’s decision in Khan was that, in summary, the correct comparator (as the requirement for a comparator was still in place at the time) would be someone who (in that case) was seeking a reference and had not brought a claim of any kind against the employer. The respondent’s counsel also relied upon an extract from the IDS employment law handbook on discrimination at work regarding that decision, which explained the impact of the Khan decision in a way which particularly supported the respondent’s argument.

[182]In the more recent case of Carozzi v University of Hertfordshire

[2024] EAT 169

, decided after the changes in the law made by the Equality Act 2010, the claimant claimed victimisation when the employer refused to give her the notes of a meeting. James Tayler HHJ considered what Khan had decided and held that the correct question that the Tribunal should simply have asked in the case he was deciding was whether the decision not to provide the notes was to a material degree influenced by the fact that a complaint of unlawful discrimination had or might be made. As a result, we asked ourselves that question (or a variation of that question as it applied to the thing being considered) when we were considering the victimisation claims.

[183]In his submissions, the respondent’s representative said that the burden of proof fell on the claimant to prove a significant influence between the protected act and any detriment (relying upon Nagarajan which addresses the burden of proof provisions in more detail). He also drew a distinction between the complaint itself, and the manner in which it was raised.

[184]Section 26 of the Equality Act 2010 says: “A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” “In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[185]The EAT in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, stated that harassment is defined in a way that focuses on three elements:(a) unwanted conduct;

(b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for her;

[186]A respondent can be liable for effects, even if they were not its purpose (and vice versa). Even if the conduct has had the proscribed effect, it must also be reasonable that it did so. The test in this regard has both subjective and objective elements to it. The assessment requires us to consider the effect of the conduct from the claimant's point of view, the subjective element. We must also ask, however, whether it was reasonable of the claimant to consider that conduct had that requisite effect, the objective element.

[187]The claimant’s counsel placed reliance upon Dhaliwal when addressing the threshold which needs to be met for unlawful harassment. He also relied upon guidance in Weeks v Newnham College of Further Education

UKEAT/0630/11

[188]We must also decide whether the conduct related to disability. When considering whether facts have been proved from which we could conclude that harassment was on a prohibited ground, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on that ground.

[189]We heard submissions on credibility. The claimant relied upon Painter v Hutchinson

[2007] EWHC 758

in submitting that a non-exhaustive list of indicators of unsatisfactory witness evidence were: evasive and argumentative answers; tangential speeches avoiding the questions; blaming legal advisers for documentation; disclosure and evidence shortcomings; self-contradiction; internal inconsistency; shifting case; new evidence; and selective disclosure.

[190]Section 123 of the Equality Act 2010 provides that proceedings must be brought within the period of three months starting with the date of the act to which the complaint relates (and subject to the extension for ACAS Early Conciliation), or such other period as we think just and equitable. Conduct extending over a period is to be treated as done at the end of the period. A failure to do something is to be treated as occurring when the person in question decided on it.

[191]The key date is when the act of discrimination occurred. We also need to determine whether the discrimination alleged is a continuing act, and, if so, when the continuing act ceased. The question is whether a respondent’s decision can be categorised as a one-off act of discrimination or a continuing scheme. The Court of Appeal in Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

made it clear that the focus of inquiry must be on whether there was an ongoing situation or continuing state of affairs for which the respondent was responsible in which the claimant was treated less favourably. One relevant factor is whether the same or different individuals were involved in the incidents, however that is not a conclusive factor.

[192]If out of time, we need to decide whether it is just and equitable to extend time. Section 123(1)(b) of the Equality Act 2010 states that proceedings may be brought in, “such other period as the Employment Tribunal thinks just and equitable”. The most important part of the exercise of the just and equitable discretion is to balance the respective prejudice to the parties. The factors which are usually considered are contained in section 33 of the Limitation Act 1980 as explained in the case of British Coal Corporation v Keeble

[1997] IRLR 336

. Those factors are: the length of, and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the relevant respondent has cooperated with any request for information; the promptness with which the claimant acted once she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once she knew of the possibility of taking action. Subsequent case law has said that those are factors which illuminate the task of reaching a decision, but their relevance depends upon the facts of the particular case, and it is wrong to put a gloss on the words of the Equality Act to interpret it as containing such a list or to rigidly adhere to it as a checklist. The Court of Appeal emphasised in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

that the best approach in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which we consider relevant to whether it is just and equitable to extend time, and that factors which are almost always relevant to consider when exercising any discretion whether to extend time are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). As the respondent’s counsel emphasised, Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

as well as confirming the breadth of the discretion available to us, it also said of the discretion, that “There is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule”. The onus to establish that the time limit should be extended lies with the claimant.

[193]Both counsel provided very thorough and detailed submissions. Those documents and verbal submissions addressed the law in more detail than we have done and raised matters which have not been expressly addressed within this document, to ensure that it remains appropriate and proportionate. We considered all that was said and the fact that we have not reproduced everything that was said, does not mean that we did not take it into account. We have not listed every case referred to. Conclusions – applying the Law to the Facts

[194]We did not start by considering the time/jurisdiction issues even though they were set out first in the list of issues. We left those issues to be decided once we had reached the other decisions.

[195]Issues three to five were relating to disability and in practice were not issues we needed to determine. The disabilities relied upon were dyslexia and dyspraxia. The respondent accepted that the claimant was disabled for the purposes of section six of the Equality Act 2010 at the relevant time by reason of dyslexia and dyspraxia. The respondent also accepted that it had knowledge of both conditions at all relevant times. In this Judgment there is on occasion a reference to neurodiversity, as referred to in submissions. In this case, when doing so, we are referring to the disabilities relied upon and accepted. The duty to make reasonable adjustments

[196]The second issue number five in the list of issues, was a summary of the overarching issue which we needed to decide in the claimant’s claim that the respondent had breached the duty to make reasonable adjustments. The question was: did the respondent fail to make reasonable adjustments to avoid the disadvantage caused by the claimant’s disability once it knew about it? In practice we determined that issue by following the issues set out as issues six to twelve in the list.

[197]Issue six set out the things which the claimant contended were PCPs (a PCP is a provision, criterion or practice). The issue also asked whether the respondent applied that PCP to the claimant? Issue seven asked whether those PCPs placed the claimant at a substantial disadvantage in comparison with persons who are not disabled? We considered those issues together, for reasons which are explained.

[198]The PCP relied upon as issue 6(a) was the application of the respondent’s redeployment policy. The allegation in the list went on to describe what it was said the application of that policy led to, but the actual PCP relied upon was nonetheless the policy itself. What the allegation said was that it led to the claimant being redeployed into: the patient services team on 15 March 2023 with the trial beginning on 24 April 2023, the ED on 22 May 2023, and the proposal to redeploy the claimant into the laundry department on 28 July 2023.

[199]The respondent relied upon the case of Griffiths in its submissions on that PCP. In that case, Elias LJ had identified what we have recorded in the section on the law above, about the application of that respondent’s relevant policy. We found that the claimant in this case had the same issue when she relied upon the policy, as the claimant ultimately did in the Griffiths case. The redeployment policy included elements which addressed reasonable adjustments (2066). We found that the policy itself did not place the claimant at a substantial disadvantage when compared to someone without a disability, for the same reasons as Elias LJ explained in Griffiths. Accordingly, when considering the PCP relied upon at 6(a) (which we noted entirely reflected what was said in the amended claim form), that PCP did not place the claimant at a substantial disadvantage at all. In submissions, this was categorised by both counsel as being a technical argument. We understood that it was. Nonetheless it was an entirely correct argument.

[200]For the PCPs relied upon by the claimant as 6(b) and 6(c), we considered an argument raised by the respondent as it applied to both of them. In raising this argument, the respondent’s representative’s written submissions relied upon Nottingham City Council, and his oral submissions referred to Ishola, a case we have cited at some length in the section on the law above (and it was also a case which the claimant’s representative referred to in his submission). We also took into account what is said in the EHRC code of practice. We found that what was relied upon was not genuinely a PCP. Both allegations were specific to the claimant and did not have the nature of potential repetition which Ishola identifies is required. That is clear from what was said in the list of issues for each PCP, which, in both cases, was focussed upon a specific decision and/or action involving the claimant personally. We found that to be entirely clear for issue 6(c) (the PCP was said to be the alleged [failure] to provide advanced notice of the meeting on 26 September 2024 to discuss the conclusion of the trial period on CCU). We also found that 6(b) was not genuinely a PCP based upon what was alleged (the alleged failure to continue to undertake bank shifts while she was awaiting the commencement of her trial on CCU which was communicated to the claimant by email dated 11 September 2024). We did consider that a broader defined PCP, which relied upon refusing to allow employees to undertake bank shifts in certain defined circumstances, could have been a PCP, but we were satisfied that we could not consider such a PCP as it had not been pleaded and it certainly did not fit within the tweaks which the claimant’s representative submitted we could make to the pleaded PCPs.

[201]As we found that the first PCP relied upon did not place the claimant at the disadvantage required (in comparison to those without her disability) and the second and third contended PCPs were not genuinely capable of being PCPs for the purposes of the provisions of the Equality Act 2010, the claimant’s allegation that the respondent breached the duty to make reasonable adjustments did not succeed. We did not need to go on and consider the other issues and the reasonable adjustments relied upon. Nonetheless, as we heard evidence and argument about the specific reasonable adjustments and for completeness, we thought it appropriate to record what we found for those adjustments, albeit that we have done so in circumstances where we did not find that those were adjustments which the respondent was legally obliged to make as a result of our findings on issues six and seven.

[202]Proposed adjustment 9(a) was that the claimant’s colleagues should receive training on neurodiversity, so that (it was said) there would be an understanding as to how the claimant processes and manages things. We accepted that neurodiversity training for all employees is a positive thing. We also accepted that the team in which the claimant works gaining a greater understanding of the claimant’s own specific neurodiversity and the way in which it impacts upon her, must also be potentially beneficial. We noted that the PSA trial was not successful because the claimant’s colleagues complained about her asking questions (and the extent to which she did so), something which appeared to have occurred to an extent due to the claimant’s disability. There was therefore a genuine and realistic prospect that had those colleagues been informed or trained about her neurodiversity (and been informed about what had been said by the occupational health advisor), they might have responded differently to working with her (such as, not threatening to resign if required to work with her). The success of training is, of course, dependent upon the nature, content, and quality of such training. Had the respondent done what it was recommended to do by its occupational health advisor about understanding the claimant’s neurodiversity, that would have been an adjustment which had a realistic prospect of assisting the claimant. It would have been reasonable in a small department, or if restricted to a small group of employees with whom the claimant was likely to work in a larger department (such as ED). However, for the reasons which we have explained which applied to all adjustments, the complaint did not succeed due to the elements of the test set out above.

[203]Proposed adjustment 9(b) was that there be a network of support within work comprising of people who understand the claimant’s neurodiversity and who can support the claimant and/or a buddy within work who understands the claimant and can support her. The word buddy can be used in different ways, as was illustrated in this case. We read the recommendation in the occupational health report as being focussed upon the claimant having a buddy in the workplace who could support her with her neurodiversity, rather than a person who supported her with her particular role. Miss Harrison, in evidence, described herself as being a buddy when she worked as the claimant’s supervisor during her trial as a PSA. Two specific people were assigned to work alongside the claimant during her trial as a PSA as a buddy. In submissions, the respondent accepted that there was no buddy on the ED trial. it was Mrs Gilligan’s evidence, that it had not appeared to her that the claimant had consistently had a buddy during her redeployment trials. The claimant was provided with some buddies on occasion, but those arrangements did not benefit the claimant as they could have, in part because of the lack of information provided to those buddies about the claimant’s own disabilities and the adjustment required. However, as with all of the reasonable adjustment allegations, this complaint did not succeed because we did not find that the other elements of the statutory test were satisfied.

[204]Proposed adjustment 9(c) was that at the start of each role, clear guidance was given on the claimant’s role and responsibilities to ensure that there were no grey areas regarding the duties expected of the claimant – the guidance to be set out and written down and given to the claimant at the start of each role. What was actually recommended in the key occupational health report as being beneficial for the claimant, was that her roles and responsibilities were set out and written down, so she knew what was expected of her. We accepted the claimant’s own evidence, that she knew what was expected of her as an HCA and she knew an HCA’s standard responsibilities. The claimant did need (or would benefit from) new things faced in a specific role being written down, and to be provided with a check list of the things she was being asked to do which were specific to each role. The respondent contended that doing so would be disproportionate and unnecessary. Mrs Robinson’s evidence was that she did write down for the claimant what was required on the CCU where it differed, such as with fluid balances. We noted that this was done to an extent, as the respondent argued. We accepted that the claimant did not need a complete set of documentation for every role. It is entirely possible that the respondent could reasonably have provided more than they did in some of the claimant’s trials. However, we did not find any shortcoming in doing so to have been a breach of the legal duty to make reasonable adjustments, for the same reasons as applied to them all.

[205]Proposed adjustment 9(d) was that the claimant be given a maximum of two new tasks to learn at any one time and that the claimant was given additional time to process information. What was said in the key occupational health report was that the claimant should only be given a maximum of two new tasks to learn at a time. We noted that, in the PSA trial, the respondent did that (at least to an extent) by limiting the claimant’s trial so that she did not undertake patient transport at the same time as starting the cleaning part of the role. The respondent contended that it was not possible in the ED because of the nature of the Patient Champion role. We accepted that, to an extent, it was not clear what new tasks the claimant was required to learn at any one time as an experienced HCA. We would not have found that what was asserted would have been a reasonable adjustment which the respondent was legally obliged to make, as the vague nature of what was required would have made such a finding impossible. Clearly, it was a good idea for the new tasks given to the claimant at any one time to be limited, but what was asserted was not something which could have been found to have been a reasonable adjustment the respondent was obliged to make.

[206]Proposed adjustment 9(e) was that all documents were to be printed on yellow paper to make reading easier for the claimant. We considered this to be a reasonable adjustment which the respondent was required to make. We accepted that it was not something recorded in the occupational health report as the respondent submitted, but that did not stop it from being an adjustment which the respondent should reasonably have made. In CCU, the evidence we heard was that Mrs Robinson did make this adjustment when told by the claimant. In PSA, there was a dispute on the evidence between that of the claimant and Miss Harrison about whether it occurred. On ED, the respondent did not do it, because Mrs Lewis did not know. We accepted that the position was different for documents regarding patients, and we would not have found it to have been a reasonable adjustment for all patient records in the Trust to be on yellow paper, as such a requirement would be disproportionate, and some records were in any event from an external provider. We also noted that the claimant was able to use a yellow acetate which she was able to have available, and which would be a more proportionate approach to addressing the disadvantage for patient documents.

[207]Proposed adjustment 9(f) was that the claimant received regular supervision that was written down, due to her short-term memory deficit, the same to take place every two weeks initially for a period of six months, then monthly as normal. What was pleaded as being the proposed reasonable adjustment was not what was recommended by the occupational health advisor. The recommendation was that she should have regular supervision and that should be written down due to her short-term memory deficit. We would consider that, generally, having regular supervision meetings and providing a written record of such meetings, would be beneficial and in many circumstances would have been found to have been a reasonable adjustment the respondent was required to make (if the other elements of the test had been satisfied). The respondent accepted that no formal records of the supervision meetings held with the claimant in the PSA role were provided. On ED there were also no such records. Had the claimant otherwise established her complaint, we could have found that the failures to do so were a breach of the respondent’s legal duty.

[208]Proposed adjustment 9(g) was that colleagues were to approach the claimant if they had any issues or questions to enable matters to be resolved in the shortest possible time, and to highlight times when the claimant might talk too much, which was a trait of the claimant. This was the advice which the respondent was given by its occupational health advisor. In practice, nothing was done to facilitate this, because none of the colleagues with whom the claimant worked on her trials knew about it, nor did the immediate managers in either PSA or ED. This requirement was not cascaded to those who needed to know. Had the other elements of the test been satisfied, we would have found the failure to have done what was recommended to have been a breach of the duty to make reasonable adjustments. In the PSA trial, it was clearly to the claimant’s disadvantage that it was not made, as the primary reason for ending the trial were the complaints from colleagues who did not know about the adjustment required and who had therefore not highlighted to the claimant the occasions when she was talking too much.

[209]We did not accept the question raised by the respondent in submissions about how overtalking arose from the claimant’s disability, or the submission that the reference to a trait in the report somehow meant that it did not arise from the accepted disabilities. The recommendation was made in an occupational health report which was addressing the claimant’s disabilities and the adjustments required because of them. It was implicit that the recommendations which were made were those to address disability (otherwise it would not have been the occupational health advisor’s role to make the recommendation). Where that advice was provided by the respondent’s own provider, we did not accept the submissions made.

[210]We did hear evidence from the respondent’s witnesses that even if the supervisor/matron had known about the recommendation, it would not have been appropriate to ask a colleague to tell the claimant when she was talking too much. We had no issue whatsoever with colleagues being expected to speak to each other, as proposed. We had not doubt that people could and would do so in level two jobs. In practice, we would have expected staff to speak to each other when talking too much. We heard evidence that band two staff spoke to each other about various matters, as occurred in ED. The claimant’s colleagues in the PSA role were tasked with buddying her and did not appear to have held back in reporting to the supervisor about what they thought. Cleary, appropriate arrangements would need to be put in place for matters to be able to be addressed by a manager if they persisted, but the basic step recommended by the occupational health advisor was one which the respondent could and should have made.

[211]Proposed adjustment 9(h) was that the claimant be offered split shifts, the example given being no long days. The claimant wished to work long days and did not want to work split shifts. It was her evidence that she wanted to work, or at least was happy with, long shifts. This was not a failure to make a reasonable adjustment.

[212]Proposed adjustment 9(i) was that the claimant did not work nights due to the disruption working nights causes to the claimant’s sleeping pattern. We heard no evidence that the claimant was required to work nights.

[213]Proposed adjustment 9(j) was that the Claimant be offered a phased return. The claimant was offered a phased return to work as recommended by the occupational health advisor when she returned to work and undertook the PSA trial (624).

[214]Proposed adjustment 9(k) was that all feedback be followed up in writing, so that the claimant could respond and, if necessary, address such behaviours. This was not something recommended by the occupational heath advisor, save to the extent that we have already addressed it. It is something which should have been done for all formal management feedback as a reasonable adjustment for the claimant (if the other elements of the test had been satisfied).

[215]Proposed adjustment 9(l) was that a redeployment should be handled sensitively. A requirement to handle matters sensitively would not be something which was specific enough for any alleged failure to be able to be found to have been a breach of the legal duty to make reasonable adjustments.

[216]Proposed adjustment 9(m) was that the claimant be given advanced notice of meetings with full details of matters to be discussed, enabling her to fully comprehend the process and purpose of the meeting. That is an issue which will be addressed when considering the specific allegations made. As with 9(l), it was not something which it would be possible to have found was a breach of the duty to make reasonable adjustments generically, as it would of necessity depend upon the circumstances and the meeting being considered. Discrimination arising from disability

[217]The issues to be determined in the claim for discrimination arising from disability were set out at issues 13 to 17 in the list of issues. The respondent accepted that the alleged things arising from the claimant’s disabilities were things arising. That was issue thirteen. The things arising were: difficulties in interpreting pragmatic and social language; and difficulties in processing information and therefore in the claimant understanding and completing tasks given to her. We then went on to consider each of the matters which were alleged to have been unfavourable treatment as set out in allegation fourteen, applying each of issues 14- 17 to those as required.

[218]We found that the wording used in issue 14(a) was not straightforward or easy to follow. During the Tribunal hearing, we did not hear detailed evidence about, nor was there any focus on, the reason why it was that the claimant was moved out of the discharge lounge following the disciplinary process. It was clear that we were not being asked to make decisions about those historic events. As a result, we found some difficulty in considering allegation 14(a). The reason why the claimant was in need of redeployment, was the backdrop to the allegation. It was not what we were asked to determine. In his submissions, the claimant’s representative focused on what he contended was the claimant being shunted out of redeployment roles and therefore we considered each of (i), (ii) and (iii) separately.

[219]The first such allegation (14(a)(i)), was the claimant undertaking the trial in the patient services team (which we have referred to as the PSA role in the facts above). There was no evidence that the claimant did not wish to undertake that trial. The trial was ended unsuccessfully. As the trial was unsuccessful, that was unfavourable treatment of the claimant (issue 15).

[220]Issue 16 asked whether the unfavourable treatment was because of something arising in consequence of the disability? Applying that to 14(a)(i), the reason why the claimant’s trial as a PSA was ended was (at least in part) because of the claimant’s difficulties in communicating and in interpreting pragmatic and social language. The key driver to the failure of the trial appeared to be the feedback of Ms Brimlow and Ms Park about the claimant talking and being considered disruptive because she asked questions and spoke when they did not want her to do so. Ms Chetwood’s email of 28 April which provided Ms Bentley’s reason for raising issues (631), said explicitly that what had arisen was not a conduct issue, but was due to the claimant’s disability. We therefore found that the reason why the claimant was unsuccessful in her trial in the PSA role was because of the things arising from her disability.

[221]Issue 17 was the final question in determining whether the alleged discrimination arising from disability was unlawful. We were asked to determine whether the respondent had shown that the failure of the claimant’s trial as a PSA, was a proportionate means of achieving a legitimate aim. The aim relied upon was set out at issue 17 and included several component parts. The aim was said to be the respondent delivering its healthcare services to patients in a safe, professional and timely manner, with consideration to work colleagues, without disruption. We found that delivering healthcare services to patients in a safe, professional and timely manner, was clearly and obviously a legitimate aim. Doing so with consideration to work colleagues, also could be part of a legitimate aim. The reliance upon doing so without disruption, did not really appear to us to be part of the aim relied upon, as opposed to a commentary on the proportionality of the approach, but we accepted that providing services without disruption could be a legitimate aim (or part of a legitimate aim).

[222]We then considered proportionality. The decision taken was that the claimant could not fulfil a PSA role, and that her trial should be ended unsuccessfully. The evidence about the impact of any disruption which had occurred was somewhat limited. After the first three days of the trial, when this did appear to have been a more significant issue (at least for two colleagues), the claimant was spoken to by Miss Harrison. Thereafter the evidence was (as we found it) that the claimant addressed the issue and that resulted in the very positive feedback from Miss Harrison on 10 May (the claimant had worked hard, she’d had exceptional feedback, and there had been a big improvement). We also noted that somebody in a trial period in a new role would inevitably ask more questions and speak more at the beginning of the trial, than they would do both later in the trial and subsequently if an appointment became permanent. The disruption identified and evidenced by Miss Harrison appeared to have lessened during the trial period from what was said on 10 May and would clearly have reduced had the claimant undertaken the role permanently when she would have better understood what was required. As we did not hear from the decision-maker (Ms Harrison being very clear that she was not the decision-maker), we did not hear evidence which explained why those improvements had not addressed the concerns raised after the first three days of the trial. We did not find that the respondent had shown that ending the claimant’s trial unsuccessfully was a proportionate means of achieving the legitimate aim(s) upon which it relied. As a result, we found that the claimant did suffer discrimination arising from disability in the decision to end the PSA trial unsuccessfully.

[223]Issue 14(a)(ii) related to the ED and the role of Patient Champion. That was a role the claimant wished to trial. It was a role to which the claimant was not appointed following the trial. Not being appointed was unfavourable treatment (issue 15).

[224]In his submissions, the respondent’s counsel listed the reasons why the trial was unsuccessful and then accepted that none of this was the claimant’s fault and that it was partly attributable to the claimant’s difficulties understanding social cues. He also said that it was accepted that many of the issues may have arisen from the claimant’s disabilities. The reasons for the claimant being unsuccessful in her trial in the ED were more complex and varied than the reasons for the decision that the trial in the PSA role was unsuccessful. However, in the light of the concessions made by the respondent’s counsel in his submissions, we accepted that the unfavourable treatment (failing the trial) was because of things arising from the claimant’s disability (issue 16 as it applied to issue 14(a)(ii)).

[225]We have already addressed the legitimacy of the aims relied upon as they were set out in issue 17. In considering issue 17 as it applied to issue 14(a)(ii), we found the decision on proportionality for the ED role to be difficult and finely balanced. We did not hear from the person who actually made the decision that the claimant’s trial was unsuccessful. We did hear clear and cogent evidence from Mrs Lewis about why it was that she perceived that the claimant could not fulfil the role. We accepted that she was concerned about the well-being of the claimant and was very experienced in the requirements of working in the ED. It was her evidence that the ED is the most unpredictable place in the whole hospital and that social cues are integral to understanding what patients need and mitigating risk. We accepted that the decision that the claimant could not fulfil the Patient Champion role in a busy and unpredictable ED (as evidenced by Mrs Lewis) was one which was a proportionate means of achieving the legitimate aim(s) relied upon.

[226]Allegation 14(a)(iii) related to the proposed move to the laundry. That was a move which was canvassed with the claimant, and which she chose to turn down for understandable reasons. The claimant was not forced into the role. She did not wish to undertake it. We understood that the claimant saw the role as one she did not wish to accept, not being a patient-facing role. As it was a non-patient-facing role and in the light of the claimant’s evidence, we found that the offer was unfavourable because there was something intrinsically disadvantageous to it (applying the relatively low threshold for something to be found to be unfavourable).

[227]We found that a part of the reason why the respondent identified the laundry role and offered it to the claimant was because of the things arising. That was a part of why those at the respondent considered the role a good fit for the claimant. It was part of the reason why the role was offered to the claimant.

[228]We then considered whether that offer was a proportionate means of the respondent achieving the aims (which we have already accepted were legitimate) (applying issue 17 to issue 14(a)(iii)). Proportionality requires us to undertake a balance. In this case, the respondent had offered the claimant the role. We found that offering the claimant a role, which she was not forced to accept, and which was not progressed after she declined it, was a proportionate means of achieving the legitimate aims relied upon.

[229]Issue 14(b) was the respondent arranging a face-to-face meeting at very short notice on 26 September 2024 to discuss the trial. In practice the meeting was arranged the afternoon before it was due to take place, so that the claimant could be informed that she had not been successful in the CCU trial. We found that arranging the meeting at such short notice was unfavourable treatment. That would have been found to have been unfavourable in any case. It was particularly unfavourable for the claimant when her circumstances were taken into account.

[230]Mrs Emmett received the detailed account from Mrs Robinson in an email at 3.06 pm on 25 September (1571). We found that it was Mrs Emmett who decided that the meeting was needed at short notice. It was not Mrs Robinson, based upon the evidence which Mrs Robinson gave. In her evidence, Mrs Emmett said that part of the reason for urgency was patient safety, as the respondent relied upon in submissions. It was in part about informing the claimant. We carefully considered all the matters set out by Mrs Robinson for the claimant’s trail being unsuccessful as set out in the email which she wrote at the time (1571). We considered that it was notable that the majority of the reasons she gave appeared to be as a result of the things arising from the claimant’s disability. Difficulties in language and social interaction clearly related to the questioning of staff which was said to hinder staff. The difficulties in processing information clearly contributed to a number of the other matters. As a result, we found that part of the reason for the meeting being arranged at short notice were the things arising. We accepted that those translated into Mrs Emmett’s concerns about patient safety but nonetheless found that the underlying reason (or a substantial part of it) was the things arising.

[231]Turning to proportionality (applying issue 17 to issue 14(b)) we could not understand why the meeting had to take place at such short notice. Mrs Robinson was clear in her evidence that the claimant would have been supervised for the remainder of the trial and therefore her evidence did not show any need for urgency with the meeting. Mrs Emmett decided there was a need for urgency, but she was not in a position to identify any genuine risk to patient safety. We noted what Mrs Emmett said in her first email to Mr Akram (1576), where Mrs Emmett did not raise patient safety issues and appeared willing to give Mr Akram a choice about the date and time of the meeting. Shortly thereafter (1574) Mrs Emmett informed Mr Akram that the meeting would continue the following day. We found that the respondent had not shown that conducting the meeting at the short notice with which it was arranged, was a proportionate means of achieving the legitimate aims. The claimant did need to be informed about the failure of the trial and the reasons for it, but we found there to genuinely be no reason why that meeting had to take place on 26 September at short notice. As a result we did not find that arranging a face-to-face meeting at very short notice on 26 September 2024 to discuss the trial, was a proportionate means of achieving the legitimate aims, and, as a result, we found it to have been unlawful discrimination arising from disability (issue 14(b)).

[232]What was alleged in issue 14(c) was that the respondent failed to provide advanced details of the meeting on 26 September. In practice, we found that the respondent did not fail to provide details in advance of the meeting. The information was provided to Mr Akram. He forwarded that information to the claimant. She had the information in advance of the meeting, albeit she did not read it in detail. We found for this issue that it did not occur as alleged. We have already addressed the short notice of the meeting in our finding on the previous allegation, and therefore we did not need to further address that issue when considering issue 14(c). Victimisation

[233]The issues in the victimisation complaints were set out as issues 18-23. Issues 18 and 19 asked whether the claimant had done the things set out as (a) to (c) and, if so, were they protected acts. The respondent accepted the protected acts relied upon were protected acts. Those were: submitting the grievance on 24 July 2023; submitting the claim form at the Employment Tribunal on 30 November 2023; and submitting the second claim form at the Employment Tribunal on 29 April 2024. We considered each of the alleged things set out at (a) to (l) of issue 20 and considered for each of those allegations/issues what were our decisions on issues 21-23.

[234]Issue 20(a) was that the respondent failed to hold long term support meetings in accordance with its policy. It was said in the allegation that the meeting should have been held four-weekly from July 2023. We found that the respondent did not meet with the claimant as frequently as it should have done under the terms of the policy. We did not accept the respondent’s counsel’s submission that the policy envisaged that the first meeting would only occur two months after the absence started. We would have expected the first long term absence meeting to have been soon after the first month of absence. There was a delay, as the meeting did not happen until 12 October 2023 when sickness absence had begun on 31 July.

[235]Issue 21 asked whether that was the respondent subjecting the claimant to a detriment. We found that was a detriment. That was accepted by the respondent.

[236]Should the respondent have held such meetings more quickly? Our answer was yes. However, in considering issue 22, we needed to decide whether the delay was because the claimant had raised the grievance? We found that the answer was no. The delay was for two reasons: the claimant being assigned to a department in which she no longer worked; and the need to identify a person to manage the sickness absence. We did not find that any failure to hold long term sickness absence meetings was because of the grievance (or because the respondent believed the claimant might do a protected act).

[237]Issue 20(b) was the allegation that the respondent failed to complete the longterm sickness absence meeting on 12 October 2023 and then failed to reconvene it. That was the long-term sickness absence meeting conducted by Mrs Topham. She prepared for the meeting which she thought was going to take place. Understandably, the claimant and her trade union representative expected her to have greater knowledge about the events which had led up to the absence (and the status of the claimant’s role), and that led to the breakdown of the meeting. As the meeting was incomplete because the claimant left the meeting, we did not find that the meeting being incomplete (of itself) was the respondent subjecting the claimant to a detriment.

[238]Mrs Topham’s evidence was that it was her intention to reconvene the sickness absence meeting. There was a delay in reconvening the meeting. The next long-term sickness absence review meeting did not take place until 16 January 2024. That delay was a detriment.

[239]The reason for the delay was, in part, due to Mrs Topham waiting for information to provide the full picture of the case. It was also in part due to holiday and ill health. In her evidence, Mrs Topham was clear that the reason for the delay was not that the claimant had raised a grievance, nor was it the Employment Tribunal claim. We accepted Mrs Topham’s evidence that those were not the reason for the delay. As a result, when considering issues 22 and 23 as they applied to issue 20(b), we did not find that the reason for the delay in reconvening the sickness absence meeting was either or both of the protected acts or because the respondent believed that the claimant might do a protected act.

[240]Issue 20(c) was the delay in arranging the resolution meeting which took place on 1 December 2023. The claimant’s representative raised the grievance/early resolution on the claimant’s behalf on 21 July 2023 and used the relevant form to do so on 24 July. The first meeting was held on 1 December. The respondent accepted that this could amount to a detriment. We found that it was obvious that taking over four months to arrange a meeting to consider a grievance, was a detriment.

[241]When considering whether the respondent did so (delayed the resolution meeting - issue 20(c)) because of a protected act or because the respondent believed that the claimant might do a protected act (issues 22 and 23), we acknowledged that there was a degree of circularity about determining whether the delay in arranging a meeting to consider the grievance was as a result of what was said in the grievance. That did not preclude a finding that one was as a result of the other, but it also did not simply follow from it. The evidence which we heard about the delay was primarily provided by Mr Peter. His evidence was that he did not think it was appropriate to arrange a resolution meeting with the claimant until her health had improved and the delay was, in part, due to the time taken to obtain an occupational health report. Whilst we did not find that the reasons given for that long a delay were good reasons, we nonetheless found that the delay was not because the claimant had done a protected act when she raised the grievance (which the respondent took too long in progressing). As a result, we did not find that issue 20(c) was unlawful victimisation (when considering issues 22 and 23).

[242]Issue 20(d) was the allegation that the respondent had failed to provide a summary of the resolution meeting setting out agreed action plans and next steps, following the meeting on 1 December 2023. The respondent emphasised that the relevant policy did not explicitly require an action plan and next steps after an informal meeting. As we have observed, the policy did not say very much about the informal process at all. Mr Akram had asked to raise the grievance formally. There was advice from the respondent’s occupational health advisor that things needed to be written down for the claimant due to her short-term memory deficit (571), as Mrs Emmett knew. Mr Akram subsequently sent emails containing his summary of the meeting and (as is addressed below) those emails were not responded to.

[243]In her evidence, Mrs Emmett placed reliance upon two things. She relied upon the informality of that stage of the grievance process. She also said she did not respond to emails because she was too busy and needed to prioritise other work.

[244]Issue 21 required us to decide whether failing to provide a summary of the meeting with an agreed action plan and next steps was a detriment for the claimant. A meeting had taken place without any follow up from the respondent. The Tribunal would have expected to see something sent in follow up, no matter how formal or informal that might have been. We found that the failure to follow up the meeting was a detriment. That would have been the case in any event, but we found it to have particularly been a detriment for the claimant (in the context of her disability and the occupational health advice).

[245]In considering the application of issue 22 to issue 20(d), we applied the burden of proof (the steps set out in the section on the law above). We found that Mrs Emmett’s response to the Employment Tribunal claim and being told about the Employment Tribunal claim in the meeting on 1 December was enough to shift the burden of proof and show that what followed could have been as a result of the Employment Tribunal claim. In her own witness statement, Mrs Emmet drew a connection between the progress of the resolution process and the Employment Tribunal claim. We found that was enough to shift the burden of proof.

[246]Once the burden had shifted, it was for the respondent to show that the lack of any notes or follow up (until the decision letter of 16 February) was in no sense whatsoever because of the claimant’s Employment Tribunal claim. We did not find that the respondent had done so. We noted what the claimant’s counsel said in his submissions (relying upon the case of Carozzi), that the question is whether the decision not to provide minutes was to a material degree influenced by the discrimination claim. We particularly took into account Mrs Emmett’s email of 16 February 2024 (1242) in which she said that the respondent’s notes would only be shared at the point of disclosure in the Tribunal claim (having been provided to the respondent’s legal team). We did not find that Mrs Emmett was truthful in her evidence to the extent that she explained the absence of follow up by reference to informal procedures or busyness, as we found that to have been inconsistent with what she said in her email to Mr Akram (where she said notes had been prepared) and what we would have expected to have been the follow up to the meeting by an experienced HR professional. We found that the absence of follow up was because of the protected act of entering the first Tribunal claim, about which Mrs Emmett was informed in the meeting. As a result, we found that the claimant was subjected to unlawful victimisation by the respondent in the way alleged at 20(d), when the respondent failed to provide a summary of the 1 December meeting with an agreed action plan and next steps.

[247]Issue 20(e) was the respondent’s failure to respond to the emails from Mr Akram of 10 December 2023, 12 January 2024 and 30 January 2024. There was no response to the email of 10 December. There was no substantive response to the email of 12 January; whilst M Peter responded, it was only in practice to say that Mrs Emmett was unavailable to respond. There was also no response to the email of 30 January, albeit that there was an email of 16 February a little over two weeks later (1242) which responded to a later email from Mr Akram. There was also a letter of 16 February (1240). We found that the respondent’s failure to respond to emails sent by the trade union representative acting on the claimant’s behalf was a detriment for her, particularly in circumstances where the trade union representative was chasing for a response and highlighting that the absence of any response was stopping things moving forward.

[248]Our decision when applying issue 22 to issue 20(e), followed from what we have already explained when deciding issue 20(d). We found that the burden of proof shifted in the light of Mrs Emmett’s response in the meeting and thereafter, to the claimant having entered an Employment Tribunal claim. With the burden of proof having shifted, we found that the respondent had not shown that the absence of a response was in no sense whatsoever due to the Employment Tribunal claim. Whilst we accepted that busyness might have been a contributing factor, we did not accept that it proved that the absence of a response was not contributed to a material degree by the Employment Tribunal claim and we did not find that the reason was solely busyness. As a result, we found that the claimant was subjected to unlawful victimisation by the respondent when it failed to respond to emails from her trade union representative of 10 December, 12 January and 30 January.

[249]Issue 20(f) was that, on 16 February, the respondent stated that the resolution meeting process would not continue until the claimant’s first Employment Tribunal claim had concluded. The allegation was correct as it was exactly what Mrs Emmett said in her letter of 16 February (1240) and her email of the same date (1242).

[250]We found that was a detriment for the claimant, as she was unable to have a resolution to her resolution request (or, in practice, the resolution was delayed).

[251]When considering issue 22 as it applied to issue 20(f), we found that it was because of the Employment Tribunal claim, as that was exactly what Mrs Emmett said in the letter. In submissions, the respondent’s counsel highlighted that Mrs Emmett held her hands up and said it was an error.

[252]We did not accept the respondent’s submission that this was not in some way a detriment because it was said not to have impacted the long-term sickness or redeployment processes. Every employee has the right to raise a grievance, and every employer is obliged to follow a process set out in the ACAS code, under which that grievance is considered without undue delay. An employer deciding not to progress a grievance and/or to not provide an outcome, we found was clearly and self-evidently a detriment and unlawful victimisation (where it was because of a discrimination claim being entered at the Employment Tribunal).

[253]We considered the submissions made by the respondent’s counsel relying on the Khan Judgment addressed in the section on the law above. If the respondent’s reliance on Khan in this case was correct, any employer would be able to put a halt to any grievance process, where an Employment Tribunal claim was entered. That is clearly not correct and we did not find that was what the Khan decision required. We also accepted what was said in the more recent case of Carozzi, decided after the changes in the law made by the Equality Act 2010, where it was held that a Tribunal should simply ask whether the relevant decision was to a material degree influenced by the fact that a complaint of unlawful discrimination had or might be made. We found that the respondent should have proceeded with the grievance process and reached decisions in it, without delay. In practice they did go on and deal with the grievance at a later date (demonstrating that doing so did not prejudice their position in discrimination proceedings). The delay in doing so (and the initial decision not to do so) was unlawful victimisation. We found that it was to a material degree influenced by the fact that a complaint of unlawful discrimination had been made. We did not find on the facts of this case that Mrs Emmett’s concerns about the Tribunal claim merited, explained, or provided a meritorious defence to this victimisation allegation. As a result, we found that the claimant was subjected to unlawful victimisation by the respondent in the way alleged at allegation 20(f) when, on 16 February 2024, the respondent stated that the resolution meeting process would not continue until the claimant’s first Employment Tribunal claim had concluded.

[254]Issue 20(g) was about the notes of the resolution meeting on 1 December 2023. We read the allegation as relating to both the failure to provide notes and the delay in doing so (as there was a reference within what was said to the policy requiring they be provided in five days). There was no specific policy which required that notes of an informal meeting be provided within a specific timescale. Mrs Emmett’s email of 16 February made clear that the notes were not being provided until the point of Employment Tribunal disclosure. Notes were included in our bundle, but it was not clear when they were first provided.

[255]We found that a delay in providing notes of the meeting was a detriment for the claimant. Her representative had provided his notes. They were disputed. The delay in the respondent providing their notes was a detriment.

[256]When considering issue 22 as it applied to issue 20(g), we followed similar reasoning to that already explained for issues 20(e) and 20(f). We found that the claimant was subjected to unlawful victimisation. The respondent accepted in submissions that the delay was because of the belief regarding disclosure in the Employment Tribunal proceedings. Khan did not provide any genuine basis for this employer to refuse to provide the claimant with notes of a meeting which had taken place, when notes had been taken (and were to be disclosed later in Tribunal proceedings). Providing genuine notes of a meeting would not be prejudicial to a Tribunal claim. The delay in providing the notes was because of the Tribunal claim, which was a protected act. As a result, we found that the claimant was subjected to unlawful victimisation by the respondent in the way alleged at allegation 20(g) (at least in part) when, the respondent delayed providing the notes of the resolution meeting on 1 December.

[257]Issue 20 (h) was said to be the respondent’s alleged failure to provide formal confirmation of the claimant’s appeal on 16 February 2024. What was recorded in the allegation in the list of issues was not correct, the claimant did not appeal on 16 February. Her representative appealed on her behalf on 27 February 2024. There was no acknowledgement or confirmation provided at the time. What we had in the bundle of documents was an exchange between Ms Emmett and an HR mailbox on the same day and an email to Ms Wilkinson (2746). In those emails, Mrs Emmett took ownership for progress of the appeal and said to Ms Wilkinson that entering into discussions could severely prejudice the case. On 15 April, a month and a half later, Mrs Emmett emailed the claimant and informed her that she was in the process of arranging the resolution appeal hearing (1344).

[258]In his submissions, the respondent’s counsel contended that this allegation must fail, because the respondent did confirm receipt of the appeal and then hear it, albeit belatedly. We would have expected an employer to have acknowledged an appeal shortly after it was raised. This respondent did not do so. The respondent only acknowledged the appeal some time later, when the respondent had decided that a hearing could be arranged. However, looking at the allegation as included in the list of issues, the allegation was that the respondent failed to provide formal confirmation of the appeal. The respondent did confirm (and hear) the appeal (belatedly) and therefore what was alleged was not found.

[259]Issue 20(i) was the allegation that the respondent failed to address the claimant’s concerns about a conflict of interest in relation to the claimant’s appeal. The list of issues said the date of those concerns were 26 and 30 April 2024. In the relevant emails, which were in fact dated 23 and 26 April, Mr Akram challenged Mrs Emmett’s involvement in the appeal, as he said it should involve a different manager. On 29 April, Mrs Emmett responded and confirmed that a senior manager would hear the appeal (which is what subsequently happened). We did not find that there was a failure to address the claimant’s concerns about a conflict of interest. When those concerns were raised, an appropriate approach was taken by the respondent.

[260]Allegation 20(j) was that the respondent failed to allow the claimant to undertake bank shifts while she was awaiting the commencement of her trial on CCU, as communicated to the claimant by email on 11 September 2024.

[261]The claimant had been undertaking bank shifts during the period about which we heard evidence. She was stopped from undertaking bank shifts. That was clearly and obviously a detriment for the claimant as she was (for a period) no longer able to undertake bank shifts when she wished to do so.

[262]In considering issue 22 as it applied to issue 20(j), we considered that the following were particularly important: the relevant occupational health report was 2 February 2023, but the decision to stop the claimant undertaking bank shifts (ostensibly based on that report) was made in September 2024 (or possibly August); the claimant had entered claims at the Employment Tribunal alleging discrimination since the report had first been considered, on 30 November 2023 and 29 April 2024; the claimant had continued to undertake bank shifts up to July 2024; and there was no evidence of any issues being raised actually arising from the claimant undertaking the bank shifts she worked.

[263]Applying the burden of proof (as explained in the section on the law), we found that there was a prima facie case that the decision to stop the claimant from undertaking bank shifts was because of the protected acts (here being the Tribunal claims). The timing of the decision was the something more which shifted the burden of proof (together with the respondent’s other responses to the Employment Tribunal claim being entered as detailed in our findings on issues 20(d)-(g)).

[264]The question for us then to decide was whether the respondent had shown that the decision was in no sense whatsoever due to the Tribunal claims? We considered Mrs Emmett’s evidence and took particular account of the emails sent in August and September 2024. On 6 August 2024 (1415) the claimant was asked not to undertake any more bank shifts by Mrs Emmett. On 13 August 2024 (1599) Mrs Emmett asked questions of the bank staff which appeared to us to be leading or loaded, to which they provided answers which to an extent resulted from the questions asked. From the response from Ms Staveley, the decision appeared to remain one for Mrs Emmett to make. We did not accept Mrs Emmett’s evidence that this was a request not a decision, as it was clear from Mrs Emmett’s email to Ms Pearson of 13 September (1552) (particularly when read with the response) that it was a direction which Mrs Emmett gave. Mrs Emmett, on 11 September (1550), told the claimant that she had asked that the claimant’s access to bank shifts should be restricted.

[265]In her evidence, Mrs Emmett contended that the reason for the decision was what was best for the claimant. In evidence in the Tribunal hearing, she said that the bank work was stopped because the claimant was working without reasonable adjustments being in place. Whilst we accepted that those elements may have been a factor in Mrs Emmett’s decision, we found that a contributory factor to the decision was that the claimant had issued Employment Tribunal claims. Whilst the respondent’s counsel submitted that there was no cogent evidence that the claimant being stopped from working on the bank was because of the protected acts, applying the burden of proof and taking into account the timing of the decision and the lack of any incident of concern when the claimant had worked on the bank during the lengthy period since the occupational health report, we found that the protected acts were part of the reason why Mrs Emmett decided that the claimant should be stopped from working on the bank. The respondent had not shown that the decision was in no sense whatsoever due to the Tribunal claims. As a result, we found that the claimant was subjected to unlawful victimisation by the respondent in the way alleged at allegation 20(j) when she was stopped from undertaking bank shifts in August/September 2024.

[266]Allegation 20(k) was that the respondent failed to conduct an adequate trial in CCU. It was said in the allegation in the list of issues that the trial period was only for three days and the claimant was supernumerary.

[267]We found that the respondent conducted a trial for the claimant on CCU which lasted for eight days/one and a half weeks, when it had been arranged for ten days or two weeks. The trial ended early at the claimant’s request, after a meeting when she had been told that the trial was not going to continue after the two weeks. The length of the trial as alleged was wrong. We concluded that the claimant had not proved to us that the respondent had failed to conduct an adequate trial, not least because the very limited period of the trial was in part due to the claimant’s own decision. We found Mrs Robinson to be a genuine and credible witness, and we accepted her evidence about the view she formed for the claimant’s nonappointment to that role and why she did so.

[268]Allegation 20(l) was that the respondent failed to provide the claimant with advance notice of the meeting on 26 September 2024 to discuss the conclusion of the trial period on CCU. The claimant’s representative was informed about the meeting on 25 September. He informed the claimant. The claimant was aware of the meeting from an email. We therefore found that the claimant was given advance notice of the meeting, albeit only shortly before it was due to take place. Harassment and direct discrimination

[269]The matters set out at issues 24(a)-(d) were alleged both to be direct disability discrimination (as set out at issue 24) and harassment related to disability (as set out at issue 29). In the approach which he took in submissions, the respondent’s counsel considered each of allegations (a) to (d) (as set out in issue 24) in turn and considered all of the issues for direct disability discrimination and harassment as they applied to each allegation. We considered that to be a logical approach. As a result, we addressed all of the direct discrimination and harassment issues at the same time for each of the allegations (a)-(d) (as set out at issue 24).

[270]Allegation (a) (24(a)) was that the respondent prepared an occupational health referral describing the claimant as disruptive on 23 January 2024. In the facts section we have set out the full words used in the referral made, which were the words written by Mrs Emmett. We considered the full words used to be important.

[271]For the direct discrimination allegation, we found that what was said was a detriment when considered from the claimant’s point of view. However, when we considered whether the same thing would have been said about a comparator in materially the same circumstances without the claimant’s disability, we found that the answer was yes. There was no evidence that Mrs Emmett included what she said because of the claimant’s disability and there was nothing which shifted the burden of proof. When considering all of the direct discrimination allegations, we understood the importance of distinguishing between things done because of the claimant’s disability and things done because of things arising from the disability (which would not be direct disability discrimination).

[272]We then considered allegation (a) applying the relevant steps required when considering disability-related harassment. The first question we asked was whether the conduct was unwanted? We found that it was. The claimant made that very clear at the time in the email which she sent on 24 August (1057). In his submissions, the respondent’s counsel accepted that it was.

[273]The second question we needed to ask when considering harassment, was whether it was related to disability? In submissions, the respondent accepted that it was. We found that it was.

[274]The next question we needed to decide, was whether what was said had the requisite purpose? We did not find that was the purpose of what was said. Mrs Emmett did not write the words in the occupational health referral intending it to have the required effect on the claimant. That was not the reason why she wrote it.

[275]We then needed to decide whether the conduct had the requisite effect (of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant). We found that it did. The claimant made clear what the impact of what had been said had been on her, in her email sent at the time. We found that what was said created a humiliating and/or offensive environment for the claimant. As she set out in her email, that was what she felt, particularly where those things had been said in the referral and (considering the full passage included) was something which nobody had told her.

[276]The final question which we needed to decide was whether it was reasonable for it to have had that effect? In submissions, the respondent relied on the fact that it was an occupational health referral, and the respondent said in that context that it could not reasonably have had that effect. We did not accept that somebody could not be harassed by what was said in an occupational health referral (or that such a finding would render occupational health referrals as otiose, as was submitted). We accepted that part of the context in which we were required to consider the reasonableness of the effect was that it was in an occupational health referral seeking medical advice. Whilst we did take that context into account, we found that it was reasonable for the words used to have had that effect on the claimant, using an objective test.

[277]In her witness statement, Mrs Emmett explained the use of the word disruption by reference to what had been fed back in the failed trials. However, what was in fact said (1190) was more detailed than that and was not limited to talking too much. What was said appeared to be about the claimant making unsubstantiated statements about staff, and it was that which was described as having caused disruption. We heard no evidence which supported the inclusion of that wording. Whilst Mrs Emmett referred to the 2022 disciplinary investigation, that could not have explained the inclusion of the words as the allegations were not upheld. In any event, in the context of this referral, it was not something which related to the failed trials. We had considerable sympathy for the respondent’s argument that occupational health referrals needed to be honest and open, to receive the medical advice required, but we found that what was said was nonetheless unlawful harassment. Allegation 29(a) was therefore found and was unlawful disability-related harassment of the claimant by the respondent.

[278]Allegation (b) (24(b)) was said to be that the respondent failed to reinstate or redeploy the claimant. The respondent’s counsel submitted that that allegation was confused. We agreed. We did not understand the inclusion of the word reinstate, as we heard no argument that the claimant should have been reinstated to the discharge lounge. The reference to redeployment, covered a large number of issues. The respondent’s further submission that attempting to deploy the claimant was neither a detriment nor unwanted, was also correct. As was submitted, we also noted that the same complaints being brought under section 15 of the Equality Act 2010 and section 13 of the same Act was inconsistent (or, at least, were not both findings which could be reached).

[279]Considering what was said in allegation (b), the respondent has successfully redeployed the claimant into another role. We would observe that it was the time taken to redeploy the claimant which in practice was wholly unsatisfactory.

[280]We have already found that the reason why the claimant was not redeployed following the PSA trial was because of something that arose from her disability. Having found that was the reason, it was not because of her disability. We have already accepted the respondent’s reasons why the claimant was not redeployed to ED following her trial as a Patient Champion, where we found that was discrimination arising from disability but was a proportionate means of achieving legitimate aim. With regard to the claimant’s non-redeployment to CCU, we accepted Mrs Robinson’s evidence about why that trial was unsuccessful. A comparator without the claimant’s disability, but in exactly the same material circumstances, would also have not been appointed following any of three trials. We did not find that any of the decisions not to redeploy the claimant into the specific roles, were direct discrimination because of her disability.

[281]Considering allegation (b) and harassment, we found that failing the trials was unwanted. Each of the decisions was related to disability, for the reasons we have explained when detailing our decisions about the first two trials and discrimination arising from disability. None of the decisions had the requisite purpose, because that was not the purpose of the respondent when deciding that the trials had not been successful. We found that failing the trials did have the requisite effect on the claimant, as failing the trials created a humiliating environment for her, and repeatedly failing trails clearly created a humiliating environment for her. We also found it to have created an intimidating environment where, after the failure of the CCU trial, the claimant was told that her employment might need to be terminated on capability grounds. However, we did not find that it was reasonable for the failed trials to have the relevant effect, where there were reasons given for the failed trials (where we have already found that the decision made in the PSA trial was discrimination arising from disability).

[282]Allegation (c) (24(c)) was that the claimant was subjected to an incident on 8 July 2023. The facts are set out at paragraphs 70-72 of the facts above. For the direct discrimination claim we found that what occurred was a detriment. However, there was no evidence that a comparator in materially the same circumstances without the claimant’s disability would have been treated differently. There was nothing which shifted the burden of proof. We did not find that it was direct disability discrimination.

[283]In terms of harassment, we found that what occurred was unwanted. It may have been that the other Patient Champion’s conduct had the purpose of creating an intimidating environment for the claimant, as we did not hear any evidence from the other Patient Champion. In any event, the other Patient Champion’s conduct certainly had the effect of creating an intimidating environment for the claimant and we found that it was reasonable that it did so, based on the claimant’s account and the fact that a Police Officer intervened (as the claimant described). However, there was no evidence that what occurred related to the claimant’s disability. It occurred because the claimant had asked a colleague to provide a statement about the person who then shouted at the claimant.

[284]Allegation (d) in a large part overlapped with allegation (b). The majority of 24(d) and 29(d) we have already addressed when explaining our decisions on 24(b) and 24(d). However, the additional element of (d) was the notification that the claimant could not carry out bank shifts without prior agreement.

[285]We have already found that the claimant being stopped from working on the bank was victimisation. In doing so, we noted the timing of the decision to stop the claimant working on the bank, when she had continued to do so for a long time after the relevant occupational health advice and throughout much of the period about which we heard evidence. The decision that she could not carry out work on the bank was detrimental. For the direct discrimination complaint we found that a comparator without the claimant’s disability (but otherwise in materially the same circumstances) would have been treated the same.

[286]Turning to harassment (issue 29(d)), the claimant’s removal from the bank was unwanted. We found that it had the effect of creating a hostile environment for her (as the claimant and Mr Akram effectively voiced at the time). That effect was not unreasonable. We considered what Mrs Emmett said about why she stopped the claimant working on the bank. We found those reasons to have been related to disability (applying that relatively broad test). Whilst we have found that a part of the reason was the protected act(s), we also found that the reasons were in part related to disability.

[287]In his submissions, the respondent’s counsel accepted that the decision was related to disability. He contended that this could not have reasonably harassed the claimant. His basis for that assertion, was that he said the decision was made in the claimant’s best interests. He also contended that it was a short pause. We found that it was related to disability, but we did not accept the other submissions. We applied the steps in the relevant test for harassment as we have set out. We found that test to have been satisfied. The respondent’s good intentions or the view they took about the undesirability of the claimant working on the bank without adjustments in place in advance, did not mean it was not reasonable for the claimant being stopped from working on the bank to have had the effect of creating a hostile environment for her. It was related to disability. We found that it was unlawful harassment. Allegation 29(d) was therefore found and was unlawful harassment of the claimant by the respondent. Time limits/jurisdiction

[288]We have set out our findings on the evidence which we heard and we only considered the time and jurisdiction issues at the end of our deliberations. As a result, for those matters for which we found for the respondent, we did not go on and consider whether the complaints had been entered in the time required. However, for the matters in which we found for the claimant, we did then consider jurisdiction and time limits. The respondent’s counsel provided a summary of the primary position (before continuing act and/or just and equitable extension were considered) in his submission document. The claimant’s counsel did not argue that anything in that summary was wrong. His position (as it applied only to the otherwise successful claims) was that:a. The allegation of discrimination arising from disability concerning the claimant’s trial as a PSA was out of time as it was in the first claim and pre-dated 21 June 2023; and

b. The harassment allegations as they applied to the OH referral on 23 January 2024 were out of time. That was in the second claim and predated 30 January 2024.

[289]A claim which has been brought outside the primary time limit can still have been brought in time if it was part of conduct extending over a period, when the conduct extending over the period is to be treated as having been done at the end of the period. We determined that both of the harassment allegations which we found, were part of conduct extending over a period. The alleged harasser was the same. We found that there was an ongoing situation or continuing state of affairs for which the respondent was responsible in which the claimant was treated less favourably, when the two harassment complaints which we have found were considered together. As the harassment finding in relation to bank shifts was entered within the time required, that meant that the harassment found in the occupational health referral was also in time as it was part of conducting extending over a period which ended within time.

[290]Section 123(1)(b) provides that the Tribunal does have jurisdiction to consider a complaint even if brought outside the primary time limit, where it was brought within such further period as the Tribunal considered to be just and equitable. We considered whether that applied to both of the complaints found, which the respondent had identified as having been otherwise out of time, including the harassment of 23 January 2024 (if we were wrong about the continuing conduct). We have set out in the section on the law the relevant factors to be considered.

[291]When deciding whether it was just and equitable to extend time, we considered the following to be the important factors:a. The length of the delay was very short for the harassment complaint (seven days). It was longer for the PSA trial (the claimant was told about that on 4 May 2023, which pre-dated 21 June 2023 by approximately one and a half months);

b. There was no reason given for the complaints being entered late;

c. The claimant had support from her trade union;

d. The claimant has disabilities which impact on the processing of information;

e. The prejudice to the claimant if time were not extended, was that she would not have a judgment in her favour having suffered unlawful discrimination/harassment and would be unable to recover any remedy for that which would otherwise be due;

f. The prejudice to the respondent of the late presentation of the claim was very limited, as they had presented their defence to the complaints in full with witnesses, documents and evidence – we heard a considerable amount of evidence about the PSA trial and we heard all relevant evidence about the occupational health referral; and

g. Time limits are there for a good reason and an extension is the exception rather than the rule.

[292]The most important factor is the balance of prejudice. When we weighed all those factors in the balance, whilst particularly noting the importance of the balance of prejudice, we decided that time should be extended on a just and equitable basis. As a result, we had jurisdiction to consider the claim of discrimination arising from disability concerning the claimant’s trial as a PSA (for which we would otherwise not have had jurisdiction) and we would have had jurisdiction for the claim for harassment arising from what was said in the occupational health referral in any event (albeit that we have found that we had jurisdiction to determine that claim because it was a continuing course of conduct with another, in time, complaint).

Summary

[293]For the reasons explained above, we found for the claimant in some of her claims for discrimination arising from disability, harassment related to disability and victimisation. We did not find for the claimant in her other claims.

[294]As a result of our decision, we will need to go on an decide what remedy the claimant is entitled to. A remedy hearing at which that will be decided, has already been arranged for 11 May 2026 (with a time estimate of one day). The parties will separately be sent case management orders setting out the steps required to prepare for that hearing. Employment Judge Phil Allen 31 October 2025